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[ { "docid": "22666451", "title": "", "text": "contract surely could not encompass a claim that the arbitration clause was itself part of a contract in restraint of trade. Cf. Paramount Famous Lasky Corp. v. United States, 282 U. S. 30 (1930); see also United States v. Paramount Pictures, Inc., 334 U. S. 131, 176 (1948). Nor in my judgment should it be read to encompass a claim that relies, not on a failure to perform the contract, but on an independent violation of federal law. The matters asserted by way of defense do not control the character, or the source, of the claim that Soler has asserted. Accordingly, simply as a matter of ordinary contract interpretation, I would hold that Soler’s antitrust claim is not arbitrable. II Section 2 of the Federal Arbitration Act describes three kinds of arbitrable agreements. Two — those including maritime transactions and those covering the submission of an existing dispute to arbitration — are not involved in this case. The language of § 2 relating to the Soler-Mitsubishi arbitration clause reads as follows: “A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract . . . or the refusal to perform the whole or any part thereof, . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” The plain language of this statute encompasses Soler’s claims that arise out of its contract with Mitsubishi, but does not encompass a claim arising under federal law, or indeed one that arises under its distributor agreement with Chrysler. Nothing in the text of the 1925 Act, nor its legislative history, suggests that Congress intended to authorize the arbitration of any statutory claims. Until today all of our cases enforcing agreements to arbitrate under the Arbitration Act have involved contract claims. In one, the party claiming a breach of contractual warranties also claimed that the breach amounted to fraud actionable under § 10(b) of the Securities Exchange Act of 1934. Scherk v. Alberto-Culver Co., 417 U." } ]

[ { "docid": "19894701", "title": "", "text": "pay deductibles for UM/UIM coverage, plainly fall within these spacious terms. The dispute “arises out of’ the parties’ conflicting “interpretation” of Mas-co’s obligations under the deductible agreement and Masco’s “alleged breach” of the deductible agreement by failing to pay deductibles for UM/UIM coverage. Masco argues that, because the parties did not contemplate UM/UIM coverage, they could not possibly have contracted to submit disputes arising out of this coverage to arbitration. But, by its plain terms, the arbitration clause embraces any dispute arising out of the deductible agreement whether or not the parties anticipated the dispute at the time of contracting. Our task, of course, is limited to enforcing the parties’ agreement as written, and we have no license to write a “foreseeability” limitation into the arbitration agreement. As the Seventh Circuit held in Deputy v. Lehman Bros., Inc., 345 F.3d 494, 513 (7th Cir.2003), “[w]hether a claim is subject to arbitration depends on the contractual language, and in this case the arbitration clause did not limit its scope to reasonably foreseeable claims.” See also Fazio v. Lehman Bros., Inc., 340 F.3d 386, 395-96 (6th Cir.2003). Masco further argues that (1) the deductible, which applies to “Masco Policies for Automobile Liability” (J.A. at 75), does not apply to UM/UIM claims, and (2) Ohio law forbids the imposition of a deductible on UM/UIM coverage created by operation of law. These arguments address the substance of the parties’ dispute, not whether the dispute falls with the terms of the arbitration clause, and hence the arguments lie within the province of the arbitrator. In essence, Masco attempts to recast its challenge to the underlying contractual liability as a challenge to the arbitrability of the dispute. While Masco denies that it is obligated by the deductible agreement to reimburse Zurich for deductible amounts that Zurich paid as a result of the imposition of UM/UIM coverage, it has no argument for making a particular challenge to the arbitration agreement. Instead, Mas-co’s challenge is based squarely on the absence of an underlying contractual obligation. Masco argues that it never purchased UM/UIM coverage, that the deduc-tibility obligation accordingly" }, { "docid": "23173095", "title": "", "text": "response, the district court held that Thinket’s pre-MSA claims were time-barred. As to the claims arising out of the MSA, the district court stated: The Court finds that each of the subsequent Service Agreements referred to by plaintiffs relates only to a single service order or deliverable to be provided by Thinket; they are not agreements which supersede or displace the original Master Services Agreement entered into by the parties.... The complaint makes no allegations that any particular contract for work was breached by Sun. Thus, [the Services Agreements] are not directly related to the claims made in plaintiffs’ complaint. With that finding, the district court compelled the arbitration of the claims arising under the MSA. The district court dismissed Jackson’s claims for lack of standing, but granted him leave to amend. Thinket and Jackson sought permission to file a motion for reconsideration, which the district court denied. The district court granted Jackson additional time in which to file an amended complaint. However, he never did so, and the district court entered judgment against him. Thinket appealed the order of dismissal, the reconsideration order, and the judgment. Sun filed a motion to dismiss the appeal on the ground that Thinket had not arbitrated its MSA-related claims. A panel of this Court then dismissed the appeal for lack of appellate jurisdiction. The case ultimately proceeded through arbitration, resulting in the eventual entry of a stipulated amended judgment in district court. Thinket now appeals from the amended judgment. II A threshold question is whether Think-et, as a corporation, has standing to assert discrimination claims under § 1981. “At the most general level, ‘[the standing] inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.’ ” Pershing Park Villas Homeowners Ass’n v. United Pacific Ins. Co., 219 F.3d 895, 899 (9th Cir.2000) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). “Together, the constitutional and prudential components of standing ensure that plaintiffs possess ‘such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation" }, { "docid": "22446023", "title": "", "text": "one-shot transaction in which the purchaser’s obligations are specified and are, essentially, performed in full at the closing, or soon thereafter. So it is here. And because the Purchase Agreement cannot easily be construed to refer to the operations of, or services rendered by, Theta II, that company’s employees cannot plausibly be included by implication within the ambit of either the agreement or its arbitration clause. 2. The Scope of the Arbitration Clause. Close textual analysis supports the conclusion that the Purchase Agreement’s arbitration clause should be read more narrowly than the clauses in the cases upon which appellant relies. The Purchase Agreement provides that disputes “arising under” the agreement will be subject to arbitration. This language is considerably more confining than that employed in other contracts to which appellant alludes. See Pritzker, 7 F.3d at 1114 (agreeing to arbitrate “all controversies which may arise between us, including but not limited to ... this or any other agreement between us, whether entered into prior, or subsequent to the date hereof’); Roby, 996 F.2d at 1361 (agreeing to arbitrate any “dispute, difference, question or claim relating to ” the agreements for “all purposes of and in connection with ” them) (emphasis in original); Letizia, 802 F.2d at 1186 (agreeing to arbitrate disputes “arising out of or relating to” plaintiff’s securities account). The circumscribed nature of the Purchase Agreement’s arbitration provision stands out in bold relief when one compares it with the arbitration provision in the Confidentiality Agreement. Whereas the former directs arbitration only of “[disputes arising under [the agreement]” (emphasis supplied), the latter directs arbitration of “[a]ny controversy or claim arising out of or relating to [the agreement]” (emphasis supplied). Although the Purchase Agreement’s arbitration clause might arguably be read more broadly if it were the only provision extant, see, e.g., Arnold, 920 F.2d at 1271; Martin Marietta Alum., Inc. v. General Elec. Co., 586 F.2d 143, 145, 147-48 (9th Cir.1978), the use of significantly different language in two clauses, sculpted by the same parties during the same negotiations as part of the same overall transaction, strongly suggests that the signatories" }, { "docid": "7410587", "title": "", "text": "BDO Agreement, they appear to have provided “tax ... consulting services in connection with the Transaction” as specified in the Whereas clauses. Furthermore, the record in this case, unlike in Denney, includes no admissions suggestive of mutual fraud. The BDO Defendants affirm that the tax planning services actually provided to Plaintiffs in this case were closely tied to the services described in the BDO Agreement. Neither Plaintiffs nor the BDO Defendants have made any statements suggesting that they intended, respectively, to conceal the true nature of the services provided. Finally, both parties affirmatively deny that the BDO Agreement was a “wink and a nod” arrangement. Because the record in this case does not suggest a mutual intent to enter into a fraudulent agreement, we find that the arbitration clause within the BDO Agreement is valid and enforceable. B. Scope of the BDO Arbitration Agreement In light of the presumption of arbi-trability under the FAA, we find that Plaintiffs’ claims regarding the BDO Defendants’ tax planning and marketing activities fall within the scope of the BDO Agreement’s broad arbitration clause. When an arbitration clause provides for arbitration of all matters “arising under” or “arising out of’ a particular agreement, the clause is typically construed broadly to suggest that a given dispute is arbitrable. Medtronic Ave Inc. v. Cordis Corp., 100 Fed.Appx. 865, 868-69 (3rd Cir.2004) (compelling arbitration where the arbitration clause was broad and governed “any dispute, claim, or controversy arising from or relating to this Agreement or alleged breaches thereof’); Berkery v. Cross Country Bank, 256 F.Supp.2d 359, 366 (E.D.Pa.2003) (compelling arbitration where the arbitration clause was broad and covered “all claims, demands, or disputes” that “in any way relate to or arise out of this Agreement”); Battaglia v. McKendry, 233 F.3d 720, 727 (3rd Cir.2000). The BDO Agreement arbitration clause is broad on its face, governing “any dispute, controversy or claim aris[ing] in connection with the performance or breach of this Agreement.” While Plaintiffs contend that the inclusion of the limiting phrase “in connection with the performance or breach of this Agreement” supports a narrower reading of the clause," }, { "docid": "17423166", "title": "", "text": "the CLA (see supra at ¶ 43). 68. Upon the advice of counsel, Digene sent a letter to Beckman in 1999 expressing its strong belief that Beckman’s Manufacturing Agreement with Oncor violated the terms of the CLA (see id.). This evidence further indicates that Digene considered Beckman to be a party to the CLA, for if Beckman were not a party to the CLA, then Beckman would be incapable of violating it. 69. The CLA contains a broad arbitration provision (see supra at ¶20) “which creates a presumption of arbitrability which is only overcome if it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that it covers the asserted dispute.” Oldroyd v. Elmira Savings Bank, FSB, 134 F.3d 72, 76 (2d Cir.1998) (citations omitted). Because the CLA’s arbitration clause is broadly worded—it refers only to “the parties” (see id.)—it applies to all parties to the CLA. See, e.g., Progressive Casualty Insurance Co. v. C.A. Reaseguradora Nacional De Venezuela, 991 F.2d 42, 48 (2d Cir.1993) (arbitration clause “between the contracting parties” is broadly applicable). 70. Furthermore, the claims that Digene has asserted against Beckman are within the scope of the CLA’s arbitration clause. See Medtronic Ave. Inc. v. Advanced Cardiovascular Sys., Inc., 247 F.3d 44, 54 (3d Cir.2001). In determining whether a claim falls within the scope of an arbitration agreement, the “focus is on the factual underpinnings of the claim rather than the legal theory alleged in the complaint.” Id. at 55 (citation omitted). 71. In its Second Amended Complaint, Digene accuses Beckman of contributory infringement or inducement of infringement of the ’332 patent (Count II), tortious interference with business relations with regard to the ’332 patent (Count III), and civil conspiracy for conspiring with Ventana to infringe or induce others to infringe the ’332 patent (Count IV). (D.1.174 at 14-15.) 72. All of these claims arise out of conduct associated with Digene’s rights under the ’332 patent. The factual underpinnings of Digene’s claims necessarily implicate the CLA and its arbitration provisions, because Digene acquired its rights to the ’332 patent from" }, { "docid": "17423167", "title": "", "text": "the contracting parties” is broadly applicable). 70. Furthermore, the claims that Digene has asserted against Beckman are within the scope of the CLA’s arbitration clause. See Medtronic Ave. Inc. v. Advanced Cardiovascular Sys., Inc., 247 F.3d 44, 54 (3d Cir.2001). In determining whether a claim falls within the scope of an arbitration agreement, the “focus is on the factual underpinnings of the claim rather than the legal theory alleged in the complaint.” Id. at 55 (citation omitted). 71. In its Second Amended Complaint, Digene accuses Beckman of contributory infringement or inducement of infringement of the ’332 patent (Count II), tortious interference with business relations with regard to the ’332 patent (Count III), and civil conspiracy for conspiring with Ventana to infringe or induce others to infringe the ’332 patent (Count IV). (D.1.174 at 14-15.) 72. All of these claims arise out of conduct associated with Digene’s rights under the ’332 patent. The factual underpinnings of Digene’s claims necessarily implicate the CLA and its arbitration provisions, because Digene acquired its rights to the ’332 patent from its predecessor in interest, LTI (see supra at ¶ 5). Because both Digene and Beckman are parties to the CLA, either one is entitled to invoke its broad arbitration provision. 73. For these reasons, I conclude that Beckman may arbitrate Digene’s claims against it that implicate Beckman’s rights under the CLA; that is, Beckman’s rights to receive a sublicense from IP to develop, make and have made, use, sell market and otherwise commercially exploit products and services pertaining to HPV types 31, 35, 43 and 56 (see supra at ¶ 19). 74. Ventana, on the other hand, has not demonstrated that it is entitled to arbitration (see supra at ¶ 62). The evidence adduced by Ventana at trial was insufficient for me to conclude that Venta-na acquired any assets under the CLA due to its purchase of Beckman’s assets in 2002. It therefore follows that Ventana does not have an arbitration right under the CLA. 75. However, as a matter of judicial economy and to prevent this case from moving forward on two tracks simultaneously," }, { "docid": "15670719", "title": "", "text": "status as an “insured contract” under the Policy. We find that the MSA’s provisions are not so clearly contrary to the TOAIA as to preclude the MSA from being an “insured contract.” The TOAIA generally voids indemnity provisions which purport to indemnify a party against liability caused by the in-demnitee’s negligence and arising from personal injury, death, or property damage. See Tex. Civ. Prac. and Rem. Code Ann. § 127.003; Greene’s, 113 F.3d at 50. However, the TOAIA contains an exception permitting indemnity provisions supported by liability insurance satisfying section 127.005. See Greene’s, 113 F.3d at 50. Section 127.005 states that “mutual indemnity obligations” are valid if supported by, and limited to, “equal amounts” of insurance coverage provided by each party to the other. § 127.005(a)-(b). In Greene’s, the indemnity obligations were supported only by “available liability insurance” (emphasis added), which did not satisfy Section 127.005. Greene’s, 113 F.3d at 50-51. Thus, the indemnity provisions were held invalid under the TOAIA. See id. at 51-52. The MSA’s language reflected the holding in Greene’s. It provided that each party would “provide equal amounts of insurance ... to support the indemnities voluntarily assumed in this Agreement.” The MSA also expressly limited each party’s indemnity obligation to the amount of supporting insurance that party was required to carry. Each party in fact obtained the insurance mandated by the MSA. Therefore, Greene’s is not controlling. The MSA appears to comply with Section 127.005. The district court nevertheless held, in addressing Swift’s claim for indemnity un der the MSA, that the MSA’s indemnity provisions violated the TOAIA. It noted that the language of the MSA required Air Equipment to indemnify Swift, “its parent, subsidiaries, affiliates, and partnerships, and its and their respective officers, directors, employees, and insurers and those with whom Company, its parent, subsidiaries, affiliates, and partnerships may be associates as co-lessees, partners, or joint venturers (hereinafter collectively referred to as ‘Company Group’).” But Swift was only required to indemnify Air Equipment, “its parent, subsidiaries, affiliates, and partnerships, and its and their respective officers, directors, employees, and insurers (hereinafter collectively referred to as ‘Contractor" }, { "docid": "22891838", "title": "", "text": "merits of any claim the parties have agreed to arbitrate.”). With these threshold principles in mind, we turn to the arbitration clause itself. In determining whether JLM’s claims fall within the scope of the clause, we proceed as follows: [R]eeognizing there is some range in the breadth of arbitration clauses, a court should classify the particular clause as either broad or narrow.... Where the arbitration clause is narrow, a collateral matter will generally be ruled beyond its purview. Where the arbitration clause is broad, there arises a presumption of arbitrability and arbitration of even a collateral matter will be ordered if the claim alleged implicates issues of contract construction or the parties’ rights and obligations under it. Louis Dreyfus Negoce S.A. v. Blystad Shipping & Trading Inc., 252 F.3d 218, 224 (2d Cir.2001) (internal quotation marks and citations omitted). Again, the arbitration clause at issue in this case provides that “[a]ny and all differences and disputes of whatsoever nature arising out of this Charter” are subject to arbitration. This language is at least as expansive as the language contained in a number of arbitration clauses that this Court has characterized as “broad.” See, e.g., Paramedics Electro-medicina, 369 F.3d at 649 (“any controversy, claim or dispute between the Parties arising out of or relating in any way to this Agreement”); Vera, 335 F.3d at 117 (“[a]ny dispute, claim, grievance or difference arising out of or relating to the Agreement”); Louis Dreyfus Negoce S.A., 252 F.3d at 225 (“[a]ny dispute arising from the making, performance or termination of this Charter Party”) (internal quotations omitted); Oldroyd, 134 F.3d at 76 (“[a]ny dispute, controversy or claim arising under or in connection with” agreement). Because the ASBATANKVOY’s arbitration clause is broad, its coverage extends to “collateral matters.” Louis Dreyfus Negoce S.A., 252 F.3d at 224. Our Circuit has not precisely defined this phrase. We have made it plain, however, that where the arbitration clause at issue is a broad one, it is presumptively applicable to disputes involving matters going beyond the “interpretation] or enforce[ment of] particular provisions” of the contract which contains the arbitration clause." }, { "docid": "21855552", "title": "", "text": "the federal policy favoring arbitration” in the wake of the passage of the FAA). To this end, “[t]he Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses Cone, 460 U.S. at 24-25, 103 S.Ct. 927. Before a federal district court entertaining a motion to compel arbitration may order a reluctant party to arbitrate, however, the FAA “requires the court to engage in a limited review to ensure that the dispute is arbitrable-i.e., that a valid agreement to arbitrate exists between the parties and that the specific dispute falls within the substantive scope of that agreement.” PaineWebber, Inc. v. Hartmann, 921 F.2d 507, 511 (3d Cir.1990). Under this analysis, the court will first address whether the claim falls within the substantive scope of the arbitration clause contained in the Credit Card Agreement between Berkery and CCB. Second, it will determine whether the purported settlement agreement terminated the parties’ agreement to arbitrate disputes covered by the Credit Card Agreement’s arbitration clause. 1. The substantive scope of the Credit Card Agreement’s arbitration clause In determining the substantive scope of an arbitration clause, the court’s inquiry is limited to that of “ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract.” Medtronic Ave, Inc. v. Advanced Cardiovascular Sys., Inc., 247 F.3d 44, 55 (3d Cir.2001); see also Equinox Software Sys., Inc. v. Air-gas, Inc., No. CIV. A. 96-3399, 1997 WL 570931, at *3 (E.D.Pa. Sept.5, 1997) (Robreno, J.) (“[T]he district court decides only whether there was an agreement to arbitrate, and if so, whether the agreement is valid .... ”). In making this inquiry, the court’s approach is guided by a “presumption of arbitrability.” PaineWebber, 921 F.2d at 511 (citing AT & T Technologies v. Communications Workers of America, 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) and Steelworkers v." }, { "docid": "10553121", "title": "", "text": "requirement. Instead, “any difference” includes the differences or disputes existing between the parties over contract interpretation, i.e., the proper method for billing pollution claims and the claims billable under such method. Counts 1 and 3 also fall within the scope of the second type of arbitration clause found in the blanket contracts. The district court’s one-sentence explanation that “the limitation of the arbitration to disputes particular to specific pending claims is made more explicit [in the second type of arbitration clause]” is unavailing. Id. By “made more explicit,” the district court must have read the phrase “with respect to any transaction” to modify both “the interpretation of this Agreement” and “their rights.” This construction seems less natural than reading the prepositional phrase to modify only the phrase “their rights.” Nevertheless, assuming both constructions to be reasonable, we are required to resolve this ambiguity in favor of arbitration. See AT & T Techs., 475 U.S. at 650, 106 S.Ct. 1415 (“[WJhere the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that [a]n order to arbitrate the particular [claim] should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” (emphasis added) (internal quotation marks omitted) (second alteration in original)); Mehler v. Terminix Int’l Co., 205 F.3d 44, 50 (2d Cir.2000) (“[T]he relevant question is whether the dispute 'arises out of or ‘relates to’ th[e] contract.... [I]t is clear that we have not limited arbitration claims to those that constitute a breach of the terms of the contract at issue.”); cf. Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 846 (2d Cir.1987) (“In determining whether a particular claim falls within the scope of the parties’ arbitration agreement, we focus on the factual allegations in the complaint rather than the legal causes of action asserted. If the allegations underlying the claims ‘touch matters’ covered by the parties’ sales agreements, then those claims must be arbitrated, whatever the legal labels attached to" }, { "docid": "23173093", "title": "", "text": "for Sun at such times and places and in such manner as Sun may designate.... The Services shall conform to the scope of work ... described in the purchase order(s) issued by Sun from time to time. The MSA also provided for arbitration, specifically stating: [a]ny and all disputes or controversies whether of law or fact of any nature whatsoever arising from or respecting this Agreement shall be decided by binding arbitration by the American Arbitration Association, (A.A.A.), in accordance with the Commercial rules and regulations of such Association. Two additional contracts were entered into by the parties after they had entered into the MSA, namely: Services Agreement # 1461-0995 and Services Agreement # 1461-0696. These agreements do not contain the binding arbitration clause contained in the MSA but rather each contains the identical jurisdictional provision stating that: The parties agree that the exclusive jurisdiction and venue of any action between the parties rising [sic] out of this Agreement, including disputes that may arise following termination of this Agreement, shall be the Superior Court of California for the County of Santa Clara, or the United States District Court for the Northern District of California, and each of the parties hereby submits itself to the exclusive jurisdiction and venue of such courts for purpose of such action. Sun signed “Services Agreement # 1461-0995” on October 7, 1994; Thinket did not sign the agreement until March 24, 1995. In the interim, that contract was amended via a one-page document titled “Master Services Agreement # 1461-0995 Amendment” which was signed by Sun on March 15, 1995 and by Thinket on March 20, 1995. Although the words “Master Services Agreement” appear in the Amendment to 1461-0995, both the amendment and the original document (which does not contain those words) refer exclusively to specific services, unlike the MSA. The relationship soured, and Thinket filed this action against Sun under various legal theories alleging that Sun had deliberately refused to contract with Thinket based solely on its status as an African-American owned business. Sun responded by filing a motion to dismiss under Fed. R.CivJP. 12(b)(6). In" }, { "docid": "23173092", "title": "", "text": "California, contracting through individual purchase orders. In an attempt to substantially increase its business with Sun, Thinket commenced a concerted effort in 1993 to become a supplier to Sun under a Master Service Agreement (“MSA”), which is a contract Sun offers to its preferred vendors. Sun characterizes its MSA arrangement as a form of a requirements contract, under which one party agrees to supply and the other party agrees to purchase all the specific goods or services that the other party may require during a certain period at an agreed price. According to Thinket’s complaint, its application for an MSA was denied three times without explanation, despite Sun’s alleged acknowledgment that Thinket’s work was very good. In December 1994, Thinket was successful in obtaining an MSA with Sun. The MSA at issue is titled “Master Services Agreement # 1477-1295” and provides in relevant part that: Sun may, from time to time, by issuance of a purchase order request that Thinket provide to Sun the services of Thinket’s employees on a temporary basis to perform work for Sun at such times and places and in such manner as Sun may designate.... The Services shall conform to the scope of work ... described in the purchase order(s) issued by Sun from time to time. The MSA also provided for arbitration, specifically stating: [a]ny and all disputes or controversies whether of law or fact of any nature whatsoever arising from or respecting this Agreement shall be decided by binding arbitration by the American Arbitration Association, (A.A.A.), in accordance with the Commercial rules and regulations of such Association. Two additional contracts were entered into by the parties after they had entered into the MSA, namely: Services Agreement # 1461-0995 and Services Agreement # 1461-0696. These agreements do not contain the binding arbitration clause contained in the MSA but rather each contains the identical jurisdictional provision stating that: The parties agree that the exclusive jurisdiction and venue of any action between the parties rising [sic] out of this Agreement, including disputes that may arise following termination of this Agreement, shall be the Superior Court of" }, { "docid": "12404020", "title": "", "text": "of causing Dr. Lee to remove himself from the Lee Clinic and Memorial Hospital so as to allow Defendants complete control of the facilities.” (Complaint ¶ 25) Clearly, the plaintiffs’ claims for tortious interference is related to the “performance” of the Management Agreement. 2. Transfer Agreement. Paragraph 22 of the Transfer Agreement (p. 27) provides that “[a]ny disputes, differences or controversies arising under this Agreement shall be settled and finally determined by arbitration_” (Emphasis added.) Unlike the language used in the arbitration clause of the Management Agreement, the above-quoted language of the Transfer Agreement does not expressly refer to disputes related to the “making” or “performance” of the underlying agreement. Nevertheless, the language appears to cover the plaintiffs’ claims for fraudulent inducement and tortious interference with business relations because both claims appear to “arise under” the Transfer Agreement. Importantly, “doubtful issues regarding the applicability of an arbitration clause are to be decided in favor of arbitration.” Stateside Machinery Co. v. Alperin, 591 F.2d 234, 240 (3rd Cir.1979); see also Sharon Steel Corp. v. Jewell Coal and Coke Co., 735 F.2d 775 (3rd Cir.1984). Furthermore, courts applying federal law have held that a general arbitration clause covers a claim that the plaintiff was fraudulently induced to enter into the underlying agreement. See, e.g., Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395, 402, 87 S.Ct. 1801, 1805, 18 L.Ed.2d 1270 (1967) (“where no claim is made that fraud was directed to the arbitration clause itself, a broad arbitration clause will be held to encompass arbitration of the claim that the contract itself was induced by fraud”); Willis v. Shearson/American Express, Inc., 569 F.Supp. 821, 824 (M.D.N.C.1983) (arbitration clause covered claim for fraudulent inducement). In sum, I conclude that the arbitration clauses in both the Management Agreement and the Transfer Agreement apply to all of the plaintiffs’ claims for relief. Therefore, subject matter jurisdiction is lacking over the plaintiffs’ claims at this time. Accordingly, IT IS ORDERED that: (1) Defendants’ motion to dismiss for lack of subject matter jurisdiction is granted; and (2) The complaint and this action are" }, { "docid": "19894700", "title": "", "text": "purpose to exclude the claim from arbitration,’ will remove the dispute from consideration by the arbitrators.” Id. at 577 (quoting AT & T Techs., 475 U.S. at 650, 106 S.Ct. 1415). Of course, “[w]hile ambiguities in the language of the agreement should be resolved in favor of arbitration, we do not override the clear intent of the parties, or reach a result inconsistent with the plain text of the contract, simply because the policy favoring arbitration is implicated.” EEOC v. Waffle House, Inc., 534 U.S. 279, 294, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002) (internal citations omitted). Here, notwithstanding Masco’s argument to the contrary, the arbitration clause in the deductible agreement was patently broad enough to cover the dispute as to whether Zurich can recover deductibles for the UWUIM payments made under the policies. The arbitration clause encompasses “[a]ny dispute arising out of the interpretation, performance or alleged breach of [the deductible agreement].” J.A. at 66. Masco’s claims against Zurich, which pray for a declaration that Masco has no obligation under the deductible agreement to pay deductibles for UM/UIM coverage, plainly fall within these spacious terms. The dispute “arises out of’ the parties’ conflicting “interpretation” of Mas-co’s obligations under the deductible agreement and Masco’s “alleged breach” of the deductible agreement by failing to pay deductibles for UM/UIM coverage. Masco argues that, because the parties did not contemplate UM/UIM coverage, they could not possibly have contracted to submit disputes arising out of this coverage to arbitration. But, by its plain terms, the arbitration clause embraces any dispute arising out of the deductible agreement whether or not the parties anticipated the dispute at the time of contracting. Our task, of course, is limited to enforcing the parties’ agreement as written, and we have no license to write a “foreseeability” limitation into the arbitration agreement. As the Seventh Circuit held in Deputy v. Lehman Bros., Inc., 345 F.3d 494, 513 (7th Cir.2003), “[w]hether a claim is subject to arbitration depends on the contractual language, and in this case the arbitration clause did not limit its scope to reasonably foreseeable claims.” See also Fazio" }, { "docid": "5123027", "title": "", "text": "allegation that Telcor fraudulently induced it to enter into the Contract. Because it is undisputed that both Alamria and Telcor are signatories to the Contract containing the arbitration clause, both parties have manifested their intent to submit to arbitration. The next question for the court is the scope of the universe of disputes the parties agreed to arbitrate. All three of Alamria’s breach of contract claims against Telcor, by definition, are “disputes hereunder” 'within the meaning of the broadly worded arbitration clause of the Contract. This conclusion is required not only by the plain language of the clause, but also by the court’s holding in Peoples Security Life Ins. Co. v. Monumental Life Ins. Co., 867 F.2d 809 (4th Cir.1989). In that case, claims of fraud in the inducement of the contract were deemed arbitrable under a clause requiring arbitration of “ ‘[a]ny question, charge, complaint, or grievance believed to constitute a breach or violation’ of the Agreement.” Id. at 810 (alteration in original); see also Local 637, 13 F.3d at 132. This conclusion also is supported by the directives in Mitsubishi Motors and J.J. Ryan to construe international arbitration clauses especially broadly. The claims involving fraudulent, negligent, or innocent representations involve statements which relate to Telcor’s status as a telecommunications company, its capabilities, equipment and expertise. The statements allegedly made by, or on behalf of Telcor, relate to “factual issues arising in connection with the contract [ ],” J.J. Ryan, 863 F.2d at 319, and are therefore arbitrable under the Contract. See Scherk, 417 U.S. at 508 n. 1, 94 S.Ct. at 2452 n. 1 (holding that a clause requiring arbitration of “any controversy or claim [that] shall arise out of this agreement or the breach thereof’ was sufficiently broad to cover a 1934 Securities Act claim involving fraudulent misrepresentation). Alamria contends that Telcor’s alleged fraudulent misrepresentations induced Alamria to enter into the Contract, and that a claim of fraud in the inducement of the contract is properly for this court to consider because it is outside the scope of the arbitration clause. Alamria’s first obstacle in pressing this" }, { "docid": "5707229", "title": "", "text": "F.3d 639, 642 (7th Cir.1993) (“We find, however, that ‘arising out of reaches all disputes having their origin or genesis in the contract, whether or not they implicate interpretation or performance of the contract per se.... In fact, any dispute between contracting parties that is in any way connected with their contract could be said to ‘arise out of their agreement and thus be subject to arbitration under a provision employing this language. At the very least, an ‘arising out of arbitration clause would ‘arguably cover’ such disputes, and, under our cases, this is all that is needed to trigger arbitration.”) (modifications omitted). According to Defendant, each of Plaintiffs claims alleges entitlement to damages entirely stemming from the parties’ relationship. Accordingly, Defendant argues that the arbitration language is broad enough to encompass arbitration on Plaintiffs tort claims. Defendant’s position is supported in the case law. Fraud in the inducement and economic duress of the Agreement as a whole are questions for the arbitrator. See Prima Paint, 388 U.S. at 403-04, 87 S.Ct. 1801; Sparling, 864 F.2d at 638 (“fraud claims must be submitted to arbitration unless the arbitration clause itself was fraudulently induced.”); Kroll v. Doctor’s Associates, Inc., 3 F.3d 1167, 1170 (7th Cir.1993) (“[A] plaintiff may not avoid an otherwise valid arbitration provision merely by casing its complaint in tort. The touchstone of arbitra-bility in such situations is the relationship of the tort alleged to the subject matter of the arbitration clause.... [T]he fraud claims asserted here are arbitrable because they are directly related to the agreements themselves.”). In light of the arbitration clause’s broad wording and the direct relationship of Plaintiffs claims to the contract at issue, the Court finds that the arbitration clause requires that Plaintiff present his complaint to arbitration. 2. Enforceability of the Contract If the above-stated observations regarding Defendant’s contractual latitude are correct, the contract at issue may very well be illusory and thus lacking in mutuality of obligation so as to be unenforceable as a matter of law. But that is a determination that can be placed in issue and decided in the" }, { "docid": "1704604", "title": "", "text": "the district court’s holding concerning Fischer’s common-law claims. The disputed arbitration clause provided that: Any dispute, controversy or claim between the Parties, as to which there are no other necessary or indispensable parties, arising out of or relating to this Agreement, including its breach, or the transactions contemplated by this Agreement, which cannot be resolved amicably by the Parties, shall be referred to arbitration within 120 days of the date the alleged breach occurred. [Emphasis added]. Fischer concedes that the arbitration clause is mandatory. It also concedes that the clause is not too narrow in scope to encompass its claims against Northwest and Simmons. Instead of challenging the validity or scope of the clause, Fischer submits three arguments suggesting that the clause is inapplicable to its common-law claims because of factual circumstances surrounding its dealings with Northwest and Simmons. First, Fischer argues that by continuing to negotiate with Fischer for more than 120 days after its breach of the 1985 agreement, Northwest enticed Fischer into forfeiting its ability to act under the mandatory arbitration clause. In essence, Fischer argues that compliance with the terms of the arbitration clause became impossible because of Northwest’s actions. We find this argument meritless. After the alleged breach of contract, Northwest continued to negotiate toward a new agreement with Fischer, not to salvage the 1985 agreement. Northwest had no power to prevent Fischer from seeking arbitration to settle the dispute over the alleged breach of the original agreement. Further, it strikes us as disingenuous for Fischer, after maneuvering as though it were not bound by a mandatory arbitration clause (Fischer has never sought arbitration of its grievances under the 1985 agreement), to rely on a post hoc argument that the appel-lees prevented it from seeking arbitration. Fischer also argues that the arbitration clause is inapplicable because Simmons was a necessary or indispensable party. Again, we disagree. In Helzberg’s Diamond Shops, Inc. v. Valley West Des Moines Shopping Center, Inc., 564 F.2d 816, 820 (8th Cir.1977), the Eighth Circuit held that “a person does not become indispensable to an action to determine rights under a contract" }, { "docid": "23062382", "title": "", "text": "Dominican Lawsuit are not arbitrable because they are not covered by the arbitration provision in the 1994 Agreement. These claims are that SCI was coerced into the SECLP partnership by Enron, that all of SCI’s Agreements with Enron were fraudulently induced, and that Enron tortiously interfered with SCI’s negotiations with CDE. The 1994 Agreement provides in relevant part: 11.14 Dispute Resolution (a) In the event of any dispute, disagreement, controversy or claim arising under or relating to any obligation or claimed obligation under the provisions of this Agreement (a “Dispute ” which term shall include any tort claim relating to or in connection with this Agreement ... ), the party seeking resolution of such Dispute shall give notice to the other party.... (c) Any Dispute that is not resolved by the parties shall be finally settled by arbitration. Despite this broad language and the explicit reference to “any tort claim,” SCI contends that its claims in the Dominican Lawsuit fall outside the scope of this language. SCI argues that because Enron’s alleged improper actions took place in 1993, prior to the signing of the 1994 Agreement, the arbitration provision does not cover them. We have stated previously that in light of “the strong federal policy in favor of arbitration, the existence of a broad agreement to arbitrate creates a presumption of arbitrability which is only overcome if it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” WorldCrisa Corp. v. Armstrong, 129 F.3d 71, 74 (2d Cir.1997) (citations and internal quotation marks omitted). We stated in Genesco that when we consider “whether a particular claim falls within the scope of the parties’ arbitration agreement, we focus on the factual allegations in the complaint rather than the legal causes of action asserted. If the allegations underlying the claims ‘touch matters’ covered by the parties’ ... agreements, then those claims must be arbitrated, whatever the legal labels attached to them.” 815 F.2d at 846 (citation omitted). SCI’s argument that its claims against" }, { "docid": "22301291", "title": "", "text": "required only the arbitration of claims arising under the contract and we explained that the sweeping language of a similarly broad arbitration clause “d[id] not limit arbitration to the literal interpretation or performance of the contract [, but] embrace[d] every dispute between the parties having a significant relationship to the contract regardless of the label attached to the dispute.” Id. (emphasis added). Because the broad arbitration clause negotiated by ARC and CTI rendered arbitrable all disputes having a significant relationship to the consulting agreement regardless of whether those claims implicated the terms of the consulting agreement, the district court erred in concluding that ARC’s claims did not fall within the scope of the arbitration agreement because they did not turn upon the interpretation of the terms of the consulting agreement. Thus, the district court employed an improper legal standard in determining whether ARC’s claims against CTI were arbitrable. Consequently, we must now determine whether the arbitration clause in the consulting agreement encompasses the disputes between ARC and CTI, applying the proper legal standard by examining the significance of the relationship between each of ARC’s claims and the consulting agreement. See id. In applying this standard, we “must determine whether the factual allegations underlying the claim are within the scope of the arbitration clause, regardless of the legal label assigned to the claim.” Id. at 319. Bearing in mind the strong federal policy in favor of arbitration and the broad nature of this arbitration clause, we examine each of ARC’s claims seriatim. 1. In its first claim against CTI, ARC contends that CTI tortiously induced Se-cord’s breach of fiduciary duty by secretly negotiating the personal services agreement with Secord. In its complaint, ARC asserts that Secord’s personal services agreement with CTI “was a continuation of the services ARC was already providing to CTI under the CTI Consulting Agreement[ because b]oth the CTI Consulting Agreement and the Personal Services Agreement ... essentially require the services of a ‘liaison’ between CTI and other participants in the China Project, including the engineers.” (J.A at 24-25.) In effect, ARC contends that CTI, through the personal" }, { "docid": "21841258", "title": "", "text": "arbitrate some disputes does not necessarily manifest an intent to arbitrate every dispute that might arise between the parties — ” CardioNet, Inc. v. Cigna Health Corp., 751 F.3d 165, 172 (3d Cir.2014). Thus, “whether a dispute falls within the scope of an arbitration clause depends upon the relationship between (1) the breadth of the arbitration clause and (2) the nature of the given claim.” Id. The use of phrases such as “arising under” or “arising out of’ in an arbitration provision generally indicates an intent to arbitrate a broad scope of claims. Battaglia, 233 F.3d at 727; see Miron v. BDO Seidman, LLP, 342 F.Supp.2d 324, 330 (E.D.Pa.2004); see, e.g., Century Indem. Co., 584 F.3d at 556 (broadly construing a provision requiring arbitration of “any dispute with reference to the interpretation of this Agreement or [the parties’] rights with respect to any transaction involved”); Medtronic AVE Inc. v. Cordis Corp., 100 Fed.Appx. 865, 868-69 (3rd Cir.2004) (compelling arbitration of “broad” clause that governed “any dispute, claim, or controversy arising from or relating to this Agreement or alleged breaches there\"of’); Peltz ex rel. Estate of Peltz v. Sears, Roebuck & Co., 367 F.Supp.2d 711, 717-18 (E.D.Pa.2005) (broadly construing an agreement that “[a]ny and all claims ... of any nature whatsoever (whether in contract, tort, or otherwise, including statutory ... claims) arising out of, relating to, or in connection with (1) this Agreement, [or] (2) the relationships which' result from this Agreement ... ”). In contrast, an agreement to arbitrate only disputes “regarding the performance or interpretation” of the contract is normally relatively narrow in scope. CardioNet, Inc., 751 F.3d at 173-74. The two remaining claims in this case are for alleged retaliation in violation of the federal and Massachusetts FCAs. In the Employment Application, the parties agreed “to resolve any claims or disputes arising out of or relating to [Hagerty’s] application for employment or, if hired, [his] employment with or termination from Cyberonics exclusively by final and binding arbitration before a neutral arbitrator under the then current rules of the American Arbitration Association.” (Magee Decl. Ex. 1) (emphasis added). In" } ]

[ { "docid": "23352742", "title": "", "text": "of jurisdiction to resentence. As a general matter, “[t]he filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58,103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982). A district court does not regain jurisdiction until the issuance of the mandate by the clerk of the court of appeals. United States v. Rivera, 844 F.2d 916, 921 (2d Cir.1988) (“Simply put, jurisdiction follows the mandate.”). The divestiture of jurisdiction rule is, however, not a per se rule. It is a judicially crafted rule rooted in the interest of judicial economy, designed “to avoid confusion or waste of time resulting from having the same issues before two courts at the same time.” United States v. Salerno, 868 F.2d 524, 540 (2d Cir.) (citing United States v. Claiborne, 727 F.2d 842, 850 (9th Cir.), cert, denied, 469 U.S. 829, 105 S.Ct. 113, 83 L.Ed.2d 56 (1984)), cert, denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Edüd 700 (1989). Hence, its application is guided by concerns of efficiency and is not automatic. See, e.g., Webb v. GAF Corp., 78 F.3d 53, 55 (2d Cir.1996) (district court is not divested of jurisdiction to grant a permanent injunction after an appeal from the district court’s order granting a preliminary injunction); Salerno, 868 F.2d at 539-40 (frivolous appeal from district court order denying defendant’s motion to dismiss based on double jeopardy does not displace district court jurisdiction to proceed to trial). Whatever the superficial attractiveness of a per se rule that filing of a notice of appeal automatically divests the district court of jurisdiction as to matters covered by the notice, such a rule is subject to abuse, and our application of the divestiture rule must be faithful to the principle of judicial economy from which it springs. We fail to see any efficiency in allowing a party to halt district court proceedings arbitrarily by filing a plainly unauthorized notice of" } ]

[ { "docid": "23427239", "title": "", "text": "order exceeded the scope of the district court’s authority, thus leaving the original October 28 certification order intact. The viability of this appeal therefore hinges on whether the district court properly rescinded its October 28 certification order. As discussed below, we conclude that it did, and therefore that Kaiser and the. City are precluded from bringing this interlocutory appeal. a. The district court properly rescinded its October 28 certification order. The general rule regarding the power of a district court to rescind an interlocutory order is as follows: “As long as a district court has jurisdiction over the case, then it possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient.” Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir.1981) (emphasis added); see also Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1315 (11th Cir.2000) (stating that when a district court issues “an interlocutory order, the district court has plenary power over it and this power to reconsider, revise, alter or amend the interlocutory order is not subject to the limitations of Rule 59”); High Country Arts and Craft Guild v. Hartford Fire Ins. Co., 126 F.3d 629, 635 (4th Cir.1997) (same); Wagoner v. Wagoner, 938 F.2d 1120, 1122 n. 1 (10th Cir.1991) (same). The implementation of this rule requires us to determine when a district court is divested of its jurisdiction over an interlocutory order. The Supreme Court has concluded that jurisdiction is transferred from a district court to a court of appeals upon the filing of a notice of appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam) (“The filing of a notice of appeal is an event of jurisdictional significance-it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.”); Visioneering Constr. & Dev. Co. v. United States Fidelity & Guar., 661 F.2d 119, 124 n. 6 (9th Cir.1981) (“Once a notice of appeal is filed jurisdiction is" }, { "docid": "23427240", "title": "", "text": "interlocutory order is not subject to the limitations of Rule 59”); High Country Arts and Craft Guild v. Hartford Fire Ins. Co., 126 F.3d 629, 635 (4th Cir.1997) (same); Wagoner v. Wagoner, 938 F.2d 1120, 1122 n. 1 (10th Cir.1991) (same). The implementation of this rule requires us to determine when a district court is divested of its jurisdiction over an interlocutory order. The Supreme Court has concluded that jurisdiction is transferred from a district court to a court of appeals upon the filing of a notice of appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam) (“The filing of a notice of appeal is an event of jurisdictional significance-it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.”); Visioneering Constr. & Dev. Co. v. United States Fidelity & Guar., 661 F.2d 119, 124 n. 6 (9th Cir.1981) (“Once a notice of appeal is filed jurisdiction is vest ed in the Court of Appeals, and the trial court thereafter has no power to modify its judgment in the case or proceed further except by leave of the Court of Appeals.”). Thus, the filing of a notice of interlocutory appeal divests the district court of jurisdiction over the particular issues involved in that appeal. We must next ascertain when a notice of appeal with respect to an interlocutory order is deemed to have been “filed” with a court of appeals. The answer to this question is found in Rule 5(d)(2) of the Federal Rules of Appellate Procedure, which states that a notice of appeal for an interlocutory order is deemed to be filed upon the issuance of an order by a court of appeals permitting an appellant to bring an interlocutory appeal. FED. R. APP. P. 5(d)(2) (“A notice of appeal need not be filed. The date when the order granting permission to appeal is entered serves as the date of the notice of appeal for calculating time under these rules.”). A district" }, { "docid": "19618200", "title": "", "text": "the lower court's conclusion on the merits, but striking down the remedy as overbroad); Massachusetts v. Health & Human Servs. , 301 F.Supp.3d 248, 266 (D. Mass. 2018) (finding State lacked standing to challenge the IFRs), app. docketed , No. 18-1514 (1st Cir. June 6, 2018). Following the Commonwealth's initial motion for a preliminary injunction, Defendant-Intervenor Little Sisters filed a motion to intervene. The Court denied that motion. See Pennsylvania v. Trump , 2017 WL 6206133, at *1 (E.D.Pa. Dec. 8, 2017). On appeal, however, the Third Circuit reversed, remanding the case to permit intervention. See Pennsylvania v. President United States of Am. , 888 F.3d 52, 62 (3d Cir. 2018). The Court duly vacated its prior ruling and granted Defendant-Intervenor Little Sisters' motion. While the filing of a notice of appeal is generally \"an event of jurisdictional significance-it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal,\" Griggs v. Provident Consumer Disc. Co. , 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982),-\"[a]n appeal from the grant or denial of a preliminary injunction does not divest the trial court of jurisdiction or prevent it from taking other steps in the litigation while the appeal is pending,\" 11A Wright & Miller, Fed. Prac. & Pro. § 2962 (3d ed.) ; see also In re Merck & Co., Inc. Sec. Litig. , 432 F.3d 261, 268 (3d Cir. 2005) (observing that the district court retains the power to \"modify or grant injunctions\" following an appeal). The Third Circuit stayed Defendants' appeal pending the resolution of the Second Motion for a Preliminary Injunction. Pennsylvania v. President United States of Am. , No. 17-3752 (3d Cir. Jan. 9, 2019). This section and all others afterwards includes the Court's legal conclusions as required under Rule 52(a) of the Federal Rules of Civil Procedure. Defendants here question the binding effect of Texas v. United States beyond the facts of that case, given that the Supreme Court summarily affirmed the Fifth Circuit's decision \"by an equally divided Court.\"" }, { "docid": "23427241", "title": "", "text": "vest ed in the Court of Appeals, and the trial court thereafter has no power to modify its judgment in the case or proceed further except by leave of the Court of Appeals.”). Thus, the filing of a notice of interlocutory appeal divests the district court of jurisdiction over the particular issues involved in that appeal. We must next ascertain when a notice of appeal with respect to an interlocutory order is deemed to have been “filed” with a court of appeals. The answer to this question is found in Rule 5(d)(2) of the Federal Rules of Appellate Procedure, which states that a notice of appeal for an interlocutory order is deemed to be filed upon the issuance of an order by a court of appeals permitting an appellant to bring an interlocutory appeal. FED. R. APP. P. 5(d)(2) (“A notice of appeal need not be filed. The date when the order granting permission to appeal is entered serves as the date of the notice of appeal for calculating time under these rules.”). A district court therefore retains jurisdiction over an interlocutory order— and thus may reconsider, rescind, or modify such an order — until a court of appeals grants a party permission to appeal. Here, we did not issue an order granting Kaiser and the City permission to bring an interlocutory appeal — and thus did not divest the district court of jurisdiction over the issues to be raised in the interlocutory appeal — until February 29, 2000. Accordingly, the district court was free to exercise its “inherent procedural power” to rescind its October 28 certification order at any time prior to that date. Because the December 28, 1999 rescission order was issued by the district court more than two months before we granted Kaiser and the City permission to appeal, the order did not exceed the scope of the court’s authority. The October 28 certification order was therefore properly rescinded by the district court. b. The arguments raised by Kaiser and the City challenging the district court’s December 28 rescission order lack merit. Kaiser and the City raise" }, { "docid": "14977755", "title": "", "text": "it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 401-02, 74 L.Ed.2d 225 (1982). See also Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379, 105 S.Ct. 1327, 1331, 84 L.Ed.2d 274 (1985); Hovey v. McDonald, 109 U.S. 150, 157, 3 S.Ct. 136, 139-40, 27 L.Ed. 888 (1883); Apostol v. Gallion, 870 F.2d 1335, 1337 (7th Cir.1989); Henry v. Farmer City State Bank, 808 F.2d 1228, 1240 (7th Cir.1986). Just as the notice of appeal transfers jurisdiction to the court of appeals, so the mandate returns it to the district court. Until the mandate issues, the case is “in”-the court of appeals, and any action by the district court is a nullity. United States v. Wells, 766 F.2d 12, 19 (1st Cir.1985); Zaklama v. Mt. Sinai Medical Center, 906 F.2d 645, 649 (11th Cir.1990); 16 Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Eugene Gressman, Federal Practice & Procedure § 3949 at 359 (1977). Griggs notes an important limitation on the rule that just one court at a time possesses jurisdiction: the doctrine applies only to “those aspects of the case involved in the appeal.” A district court therefore may award attorneys’ fees while the merits are on appeal, Terket v. Lund, 623 F.2d 29, 33-34 (7th Cir.1980), and may consider whether to grant permanent injunctive relief while an appeal from a preliminary injunction is pending, Chrysler Motors Corp. v. International Workers Union, 909 F.2d 248, 250 (7th Cir.1990). A district court may address ancillary questions such as costs, the registration of judgments, and motions for certificates of probable cause. Chicago Truck Drivers Pension Fund v. Central Transport, Inc., 935 F.2d 114, 119-20 (7th Cir.1991); Wilson v. O’Leary, 895 F.2d 378, 382 (7th Cir.1990). And when a notice of appeal from an interlocutory order is a frivolous effort to block the normal progress of litigation, the district judge may so certify and continue with the case." }, { "docid": "18141834", "title": "", "text": "and granting Savino’s motion for partial summary judgment with respect to liability. Recently, in the case of United States v. Rodgers, 101 F.3d 247 (2d Cir.1996), the Second Circuit recognized that in general: the jurisdiction of the federal courts of appeals is limited to appeals from final decisions of the district courts. 28 U.S.C. § 1291. Final decisions are those that end the litigation on the merits, leaving nothing for the court to do but execute the judgment. Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989).... As a general matter, “[t]he filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982). A district court does not regain jurisdiction until the issuance of the mandate by the clerk of the court of appeals. United States v. Rivera, 844 F.2d 916, 921 (2d Cir.1988) (“Simply put, jurisdiction follows the mandate.”). The divestiture of jurisdiction rule is, however, not a per se rule. It is a judicially crafted rule rooted in the interest of judicial economy, designed “to avoid confusion or waste of time resulting from having the same issues before two courts at the same time.” United States v. Salerno, 868 F.2d 524, 540 (2d Cir.) (citing United States v. Claiborne, 727 F.2d 842, 850 (9th Cir.), cert. denied, 469 U.S. 829, 105 S.Ct. 113, 83 L.Ed.2d 56 (1984)), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Ed.2d 700 (1989). Hence, its application is guided by concerns of efficiency, and is not automatic. See, e.g., Webb v. GAF Corp., 78 F.3d 53, 55 (2d Cir.1996) (district court is not divested of jurisdiction to grant a permanent injunction after an appeal from the district court’s order granting a preliminary injunction); Salerno, 868 F.2d at 539-40 (frivolous appeal from district court order denying defendant’s motion to" }, { "docid": "8024200", "title": "", "text": "the court could proceed. The next day, the district court empaneled and swore the jury. On February 24, the government filed its reply to appellants’ rehearing petition. On March 1, after the trial had been underway for a week, we issued our mandate. Over a month later, on April 7, we denied appellants’ petition for rehearing. Appellants now argue that because we had not issued our mandate until after trial began, the district court lacked jurisdiction to proceed on the mail fraud count. Reviewing this jurisdictional claim de novo, see Board of Trustees v. Madison Hotel, Inc., 97 F.3d 1479, 1483 (D.C.Cir.1996), we agree. The relationship between district court jurisdiction and the issuance of the appeals court mandate is clear and well-known: The filing of a notice of appeal, including an interlocutory appeal, “confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the ease involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982) (per curiam). The district court does not regain jurisdiction over those issues until the court of appeals issues its mandate. Johnson v. Bechtel Associates Professional Corp., 801 F.2d 412, 415 (D.C.Cir.1986) (per curiam). Courts have carved out a few narrow exceptions to this rule, such as where the defendant frivolously appeals, see United States v. LaMere, 951 F.2d 1106, 1109 (9th Cir.1991) (per curiam), or takes an interlocutory appeal from a non-appealable order, see United States v. Green, 882 F.2d 999, 1001 (5th Cir.1989). Asking us to create an additional exception, the government argues that because we had issued our opinion by the time trial began, proceeding to trial prior to the issuance of the mandate neither caused confusion nor wasted judicial resources and thus did not contravene the purposes of the general rule on jurisdiction. As it did in the district court, the government relies primarily on Salerno, where the Second Circuit issued an order rejecting the defendants’ interlocutory double jeopardy appeal, stating that a formal opinion would follow but also acknowledging that the" }, { "docid": "18141833", "title": "", "text": "notice which requires that consumers be advised that they have 30 days within which to contest the alleged obligation, in violation of Second Circuit case law. See Russell v. Equifax A.R.S., 74 F.3d 30 (2d Cir.1996) (setting forth the applicable standard). On May 8, 1997, CCI filed a notice of appeal of the Court’s decision and order. Presently before the Court is the plaintiffs motion for class certification pursuant to Fed.R.Civ.P. 23. The proposed class is composed of: All persons with addresses in New York State to whom CCI sent a communication in the form of the August 14, 1995 letter sent to Class Plaintiff Frank Savino in an attempt to collect a debt incurred for person, family or household purposes, as reflected by Defendant’s records, on or after August 14, 1995. II. Discussion A. The notice of appeal At the outset, the Court must address the fact that on May 8, 1997, the defendant filed a notice of appeal with respect to the Court’s April 11, 1997 decision denying CCI’s motion for summary judgment and granting Savino’s motion for partial summary judgment with respect to liability. Recently, in the case of United States v. Rodgers, 101 F.3d 247 (2d Cir.1996), the Second Circuit recognized that in general: the jurisdiction of the federal courts of appeals is limited to appeals from final decisions of the district courts. 28 U.S.C. § 1291. Final decisions are those that end the litigation on the merits, leaving nothing for the court to do but execute the judgment. Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989).... As a general matter, “[t]he filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982). A district court does not regain jurisdiction until the issuance of the mandate by the clerk of" }, { "docid": "20983856", "title": "", "text": "No. 2.) On December 11, 2013, defendants filed a motion to vacate or modify the Original Protective Order. (Dkt. No. 39.) On December 20, 2013, Kolevins and Ferencoi filed a motion to dismiss for lack of jurisdiction and failure to state a claim. (Dkt. No, 44.) Prevezon filed its own motion to dismiss on December 24, 2013. (Dkt. No. 49.) The motions to dismiss were mooted when the Court granted the Government leave to file the AVC, which the Government filed on November 5, 2014. (Dkt. No. 174.) That same day, the court denied the defendants’ motion to vacate the Original Protective Order,, but entered, a modified protective order (the “Amended Protective Order”). The Amended Protective Order tailored the property restrained to that for which the AVC seeks forfeiture, or approximately $15 million. (See Dkt. Nos. 173, 178.) The Amended Protective Order also removed all restraints on assets held by Kolevins and Ferencoi. On November 24, 2014, Prevezon filed a notice of interlocutory appeal, seeking reversal of the court’s denial of their motion to vacate the Original Protective Order. (Dkt. No. 187.) On January 12, 2015, Pre-vezon filed a motion to dismiss the AVC, as did Kolevins and Ferencoi. (Dkt. Nos. 212, 210.) The court stayed Prevezon’s motion to dismiss pending the outcome of the interlocutory appeal. On July 8, 2015, the Second Circuit dismissed the interlocutory appeal, noting that “[j]udicial economy is better served by the District Court expeditiously ruling” on Prevezon’s pending motion to dismiss. United States v. Prevezon Holdings Ltd., et al., 617 Fed.Appx. 56, No. 14-4407, Dkt. No. 77-1, 2015 WL 4097726 (2d Cir. July 8, 2015) (summary order). This opinion followed. LEGAL STANDARDS I. Motions to Dismiss In Rem Forfeiture Actions “Motions to dismiss in rem forfeiture actions are governed by Federal Rule of Civil Procedure 12(b) and Rule G of the Supplemental Rules for Admiralty, or Maritime Claims and Asset Forfeiture Actions.” In re 650 Fifth Ave. & Related Properties, 777 F.Supp.2d 529, 541 (S.D.N.Y.2011); see also Fed.R.Civ.P. 12(b); Rule G of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions" }, { "docid": "13450902", "title": "", "text": "rule on Treasury’s motion for relief from judgment, or whether the Court could be vested with jurisdiction. Second, if the Court has jurisdiction, or if it were vested with jurisdiction, whether the Court would grant Treasury relief from judgment on any or all of the three grounds that it seeks. I. Jurisdiction Rule 60(b) of the Federal Rules of Civil Procedure allows a district court to reheve a party from a judgment for various reasons, including “mistake, inadver tence, surprise, or excusable neglect.” Fed.R.Civ.P. 60(b). The filing of a notice of appeal, however, “confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal.” United States v. DeFries, 129 F.3d 1293, 1302 (D.C.Cir.1997) (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam). When a Rule 60(b) motion and an appeal are pending simultaneously, 'appellate review may continue and “the District Court may consider the 60(b) motion, and, if the District Court indicates that it will grant relief, the appellant may move the appellate court for a remand in order that relief may be granted.” Hoai v. Vo, 935 F.2d 308, 312 (D.C.Cir.1991), cert. denied, 503 U.S. 967, 112 S.Ct. 1578, 118 L.Ed.2d 220 (1992) (citing Reuber v. United States, 750 F.2d 1039, 1051 n. 16 (D.C.Cir.1984) (as amended Jan. 23, 1985); Greater Boston Television Corp. v. FCC, 463 F.2d 268, 280 n. 22 (D.C.Cir.1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972)); see Smith v. Pollin, 194 F.2d 349, 350 (D.C.Cir.1952). Further, although a district court does not have jurisdiction to grant a Rule 60(b) motion while the appeal is pending, it does have authority to deny such a motion while the appeal is pending. Smith, 194 F.2d at 350 \"When Treasury filed its Notice of Appeal on May 26, 2000, this Court was divested of jurisdiction. Jurisdiction was conferred on the Court of Appeals for the District of Columbia Circuit. Under the procedure described in Hoai, this Court may consider Treasury’s" }, { "docid": "1593906", "title": "", "text": "has not addressed this issue in the context of interlocutory qualified immunity appeals, other circuits have. See Yates v. City of Cleveland, 941 F.2d 444 (6th Cir.1991); Stewart v. Donges, 915 F.2d 572 (10th Cir.1990); Apostol v. Gallion, 870 F.2d 1335 (7th Cir.1989). The Apostol court ruled that while a proper appeal from a denial of qualified immunity automatically divests the district court of jurisdiction to require the appealing defendants to appear for trial, a frivolous or forfeited appeal does not automatically divest the district court of jurisdiction. Apostol, 870 F.2d at 1339. Accordingly, under the Apostol rule, a district court may certify in writing that the appeal is frivolous or waived. Without such certification, the trial is automatically delayed until disposition of the appeal. Id. Both Yates, 941 F.2d at 449, and Stewart, 915 F.2d at 576-78, are in accord. This circuit has addressed the issue of the effect of appeals from interlocutory orders in a closely related context. In an appeal from the denial of a motion to dismiss on the basis of double jeopardy, as in a qualified immunity appeal, the issue to be addressed by the court is whether the defendant will be forced to appear at trial. United States v. LaMere, 951 F.2d 1106, 1108 (9th Cir.1991). The court in LaMere adopted a “dual jurisdiction” rule wherein “an appeal from the denial of a frivolous ... motion [to dismiss based on double jeopardy] does not divest the district court of jurisdiction to proceed with trial, if the district court has found the motion to be frivolous”. Id. (internal quotations omitted). This court now adopts the rule set forth in LaMere in the context of interlocutory qualified immunity appeals. Should the district court find that the defendants’ claim of qualified immunity is frivolous or has been waived, the district court may certify, in writing, that defendants have forfeited their right to pretrial appeal, and may proceed with trial. In the absence of such certification, the district court is automatically divested of jurisdiction to proceed with trial pending appeal. Because the district court did not certify this" }, { "docid": "22250186", "title": "", "text": "that regard, an interlocutory appeal from an order refusing to dismiss on double jeopardy or qualified immunity grounds relates to the entire action and, therefore, it divests the district court of jurisdiction to proceed with any part of the action against an appealing defendant. See Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir.1989); cf. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (“Until this threshold immunity question is resolved, discovery should not be allowed.”). Because the district court is divested of jurisdiction to proceed to trial by the filing of a notice of interlocutory appeal raising a double -jeopardy or qualified immunity issue, there is the risk that such interlocutory appeals will be subject to abuse. As this court has previously explained in the double jeopardy context, the divestiture of jurisdiction rule, applicable generally when a defendant files a notice of appeal, should not leave the trial court powerless to prevent intentional dilatory tactics by enabling a defendant unilaterally to obtain a continuance at any time prior to trial by merely filing a motion, however frivolous, and appealing the trial court’s denial thereof. United States v. Hines, 689 F.2d 934, 936-37 (10th Cir.1982). The court in Hines held that this potential misuse of interlocutory review could be prevented if the district court “(1) after a hearing and, (2) for substantial reasons given, (3) found the claim to be frivolous.” Id. at 937 (numbering added). Upon such a procedure and an explicit finding that the claim raised on appeal was frivolous, the district “court should not be held divested of jurisdiction.” Id. However, the court cautioned that “[t]his procedure is necessary” in order to prevent the divestiture of jurisdiction. Id. In Hines, the district court had held a hearing on the defendants’ motion for abatement of the scheduled trial pending resolution of their Abney appeals. Id. at 936. After the hearing, the district court issued an order in which it found that the arguments supporting the double jeopardy claims were frivolous and without merit, that the denial of the motions to dismiss and" }, { "docid": "22258376", "title": "", "text": "Federal Practice & Procedure: Civil § 2947 at 426-27 (2d ed. 1973) (“a preliminary injunction normally lasts until the completion of the trial on the merits, unless it is dissolved earlier”); 16 C. Wright, A. Miller, E. Cooper & E. Gress-man, Federal Practice & Procedure: Jurisdiction § 3921 at 12-13 (1977) (issues arising from interlocutory injunction ruling may become moot by the time of final judgment). The Court of International Trade has reached and decided the merits of Tupy’s case. There is no longer any need to preserve the trial court’s power to provide an effective remedy on the merits, which is the purpose of a preliminary injunction. Moreover, because an appeal has been taken, the trial court’s jurisdiction is limited: The filing of a timely and sufficient notice of appeal has the effect of immediately transferring jurisdiction from the district court to the court of appeals with respect to any matters involved in the appeal. It divests the district court of authority to proceed further with respect to such matters, except in aid of the appeal [e.g., granting a stay to preserve the status quo pending the appeal, Fed. R.Civ.P. 62; Fed.R.App.P. 8], or to correct clerical mistakes under Rule 60(a) of the Federal Rules of Civil Procedure ..., or in aid of execution of a judgment that has not been superseded, until the district court receives the mandate of the court of appeals. 9 J. Moore, B. Ward & J. Lucas, Moore’s Federal Practice ¶ 203.11 at 3-44 to 3-47 (2d ed. 1986) (footnotes omitted). Appellant Tupy is pressing for this court to di rect the trial court to enter an injunction in a case over which the trial court is presently without jurisdiction. Plainly that relief is unavailable. Thus, we decline to decide whether the preliminary injunction should have been denied; the question is moot. Appellant Tupy’s remedy, if any, lies in the post-judgment rules. In view of the dismissal of this interlocutory appeal, the Court of International Trade’s published order and opinion on the preliminary injunction issue, having been timely appealed but now unreviewable, has no" }, { "docid": "19353910", "title": "", "text": "Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). The Rent-A-Center opinion itself acknowledged that, in the past, the Court had “recognized that parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability.’” 561 U.S. at 68-69, 130 S.Ct. 2772. We are bound by the conclusions of our cases that Rent-A-Center was not an intervening change that wiped away Key-Bank’s waiver. Finally, KeyBank argues that, unlike the banks in Barras and Hough, it invoked the delegation clause when it filed a Rule 62.1 motion for an indicative ruling after the district court had refused to compel arbitration but before the Eleventh Circuit decided the round-one appeal. Federal Rule of Civil Procedure 62.1 lays out a district court’s options when faced with a motion for relief it cannot grant because of a pending appeal. The district court may defer or deny the motion, but it also may indicate that it would grant the motion on remand or that the motion raises a substantial issue. See Munoz v. United States, 451 Fed.Appx. 818, 819 (11th Cir.2011) (unpublished) (“Rule 62.1 was adopted in 2009 ... to codify the practice that most courts had been following.”). If a district court issues an indicative ruling, remand remains at the discretion of the court of appeals. Fed.R.Civ.P. 62.1 advisory committee’s note; see Fed. R.App. P. 12.1 (“If the district court states that it would grant the motion or that the motion raises a substantial issue, the court of appeals may remand for further proceedings but retains jurisdiction unless it expressly dismisses the appeal.”). Key-Bank brought a Rule 62.1 motion because it had already divested the district court of jurisdiction by filing an interlocutory appeal in the Eleventh Circuit. KeyBank acknowledges, as it must, that its Rule 62.1 motion came after the district court refused to compel arbitration, but it argues that the banks in Barras and Hough waited to mention the delegation clause until after their first motions to compel arbitration were briefed, argued, decided, appealed, and then remanded. KeyBank believes that because it did not wait quite so long to raise the issue—" }, { "docid": "22768356", "title": "", "text": "1329-34. Thus, the associational plaintiffs have standing to bring this action as representatives of their members. C. City of New York In its intervenor complaint, the City asserted that Operation Rescue’s activities constituted a public nuisance endangering the public safety and welfare, and caused a drain on the public fisc due to the need to respond to demonstrations without advance notice. In light of the ample proof at trial supporting these allegations, it is clear that the City has standing to intervene. See Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 109-10, 99 S.Ct. 1601, 1612-13, 60 L.Ed.2d 66 (1979). II Jurisdiction On appeal, defendants renew their argument that their timely filed notices of appeal divested the district court of jurisdiction to consider plaintiffs’ motion for summary judgment and permanent injunctive relief. Defendants appealed from (1) the October 27 preliminary injunction, (2) the August 31 order awarding plaintiffs fees and expenses under Fed.R.Civ.P. 37(a)(4), (3) the November 4 order directing payment of contempt sanctions to plaintiff N.O.W., and (4) the December 9 order directing Operation Rescue to pay expenses associated with its violation of the TRO to the City of New York. As a general rule, an appeal may be taken only from a final judgment. Because it is a waste of judicial resources for two courts to be considering the same issues in the same case at the same time, the filing of a notice of appeal is jurisdictionally significant; it terminates the district court’s consideration and control over those aspects of the case that are on appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 401-02, 74 L.Ed.2d 225 (1982). Actions thereafter taken by the district court are taken without jurisdiction. See Weiss v. Hunna, 312 F.2d 711, 7¡13 (2d Cir.) (appeal filed divests district court of power to grant or deny relief except with Court of Appeals permission), cert. denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963). Congress permits, as an exception to the general rule, an immediate appeal from an interlocutory order that either grants or" }, { "docid": "20759028", "title": "", "text": "in abeyance pending this Court’s resolution of the post-judgment Motion. See Order of USCA [319] 1, Mar. 20, 2012. Defendants acknowledge in their Motion some uncertainty, given the pending appeal, concerning whether this Court has jurisdiction. See Defs.’ Mot. Reconsideration [307] 1 n. 1. Meanwhile, plaintiffs, engaged in negotiations with defendants over proposed modifications to the Court’s injunction, requested a delay in the Court’s resolution of defendants’ Motion for Reconsideration while those negotiations proceeded. See, e.g., Pis.’ Praecipe [320] 1, Apr. 5, 2012. Finally, on April 19, 2012, plaintiffs filed a Motion [321] for Leave to File a SurReply Brief, attaching a Sur-Reply that would inform the Court of the issues resolved by the parties’ negotiations while addressing arguments raised by defendants for the first time in their Reply to plaintiffs’ Opposition to defendants’ Motion for Reconsideration. See Pis.’ Mot. Leave [321] 2, Apr. 19, 2012. Since plaintiffs’ attached Sur-Reply addresses issues raised by defendants for the first time in their Reply, and because the Court finds that the Sur-Reply is helpful to the Court’s resolution of defendants’ Motion for Reconsideration, the Court will grant plaintiffs’ Motion for Leave to File a SurReply. See Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C.Cir.2003). II. THIS COURT’S JURISDICTION TO MODIFY THE NOVEMBER 16, 2011 FINAL ORDER The general rule is that “filing a notice of appeal ... confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). Jurisdiction is not regained until the court of appeals issues its mandate. U.S. v. DeFries, 129 F.3d 1293, 1302 (D.C.Cir.1997). However, the Federal Rules state that “[w]hile an appeal is pending from an interlocutory order or final judgment that grants ... an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights.” Fed.R.Civ.P. 62(c); see also Ayuda, Inc. v. Thornburgh, 919 F.2d 153, 156 (D.C.Cir.1990) (Wald, J., concurring" }, { "docid": "8500453", "title": "", "text": "beyond that which applies to other interlocutory orders — for amending findings of fact and conclusions of law: Amended or Additional Findings. On a party's motion filed no later than 28 days after the entry of judgment, the court may amend its findings — or make additional findings — and may amend the judgment accordingly. The motion may accompany a motion for a new trial under Rule 59. Fed.R.Civ.P. 52(b). This rule appears to limit motions to reconsider orders with findings of fact and conclusions of law to twenty-eight days. The rule’s use of the term \"entry of judgment,” its reference to rule 59, and its adoption of the same time period that applies to motions to alter or amend a judgment, all lead the Court to conclude, however, that rule 52(b) — and its 28-day time limit — does not apply to interlocutory orders. The time limit applies only to findings of fact and conclusions of law supporting a case-ending judgment — such as those entered after a bench trial — and to those giving rise to an interlocutory appeal that, if filed, divests the district court of its jurisdiction — such as those entered in support of a preliminary injunction. . Generally speaking, the filing of an interlocutory appeal divests the district court of jurisdiction. We begin with the unassailable general proposition that the filing of a notice of appeal, whether from a true final judgment or from a decision within the collateral order exception, \"is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Stewart v. Donges, 915 F.2d 572, 574 (10th Cir. 1990) (Ebel, J.)(quoting Griggs v. Provident Consumer Discount Co., 459 U.S. at 58, 103 S.Ct. 400). Interlocutory appeals of class certification rulings, however, are an exception to this general rule. See Fed.R.Civ.P. 23(f) (\"An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.”). Even if it were the case that" }, { "docid": "20759029", "title": "", "text": "resolution of defendants’ Motion for Reconsideration, the Court will grant plaintiffs’ Motion for Leave to File a SurReply. See Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C.Cir.2003). II. THIS COURT’S JURISDICTION TO MODIFY THE NOVEMBER 16, 2011 FINAL ORDER The general rule is that “filing a notice of appeal ... confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). Jurisdiction is not regained until the court of appeals issues its mandate. U.S. v. DeFries, 129 F.3d 1293, 1302 (D.C.Cir.1997). However, the Federal Rules state that “[w]hile an appeal is pending from an interlocutory order or final judgment that grants ... an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights.” Fed.R.Civ.P. 62(c); see also Ayuda, Inc. v. Thornburgh, 919 F.2d 153, 156 (D.C.Cir.1990) (Wald, J., concurring in part and dissenting in part). Rule 62(c) “codifies the inherent power of a court to preserve the status quo where in its sound discretion, the court deems the circumstances so justify.” Christian Science Reading Room v. City & Cty. of San Francisco, 784 F.2d 1010, 1017 (9th Cir.1986) (citations omitted). It does not, however, “restore jurisdiction to the district court to adjudicate anew the merits of the case.” McClatchy Newspapers v. Cent. Valley Typographical Union No. 16, Int’l Typographical Union, 686 F.2d 731, 734 (9th Cir.1982). III. RECONSIDERATION UNDER RULE 54(b) Rule 54(b) of the Federal Rules of Civil Procedure states that “any order ... that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” This rule authorizes a court to revise its interlocutory decisions any time prior to the entry of a final judgment. S.E.C. v. Bilzerian, 729 F.Supp.2d 9, 13" }, { "docid": "23252325", "title": "", "text": "days prior to the scheduled oral argument on DuPont’s motions for judgment on the pleadings on Plaintiffs’ RICO and spoliation claims, Plaintiffs filed a motion for leave to amend their complaint. The proposed amendments seek to revise the factual allegations of the amended complaint, delete certain claims upon which the district court had already ruled and which were before this court for review, and add new Florida RICO claims. The proposed amended complaint directly affected the issues already pending before this court on interlocutory appeal. “The filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982); see Dayton Indep. Sch. Dist. v. U.S. Mineral Prods. Co., 906 F.2d 1059, 1063 (5th Cir.1990) (“When one aspect of a case is before the appellate court on interlocutory review, the district court is divested of jurisdiction over that aspect of the case. A district court does not have the power to alter the status of the case as it rests before the Court of Appeals.”) (citations and internal quotation marks omitted). Because the proposed amendment would have altered the status of the case, the district court properly found that it was without jurisdiction to grant Plaintiffs’ leave to file an amended complaint. However, an interlocutory appeal does not completely divest the district court of jurisdiction. “The district court has authority to proceed forward with portions of the case not related to the claims on appeal.... ” May v. Sheahan, 226 F.3d 876, 880 n. 2 (7th Cir.2000). Therefore, the district court did possess jurisdiction to rule upon DuPont’s Rule 12(c) motion directed at Plaintiffs’ RICO and spoliation claims. CONCLUSION While we do not sanction DuPont’s alleged conduct and note that other penalties exist for such dishonest actions, for the reasons outlined in this opinion, we conclude that the district court properly entered judgment on the pleadings" }, { "docid": "13890054", "title": "", "text": "this motion is unclear. The Trustee requests that this court reconsider or “change” the August 16 Consent Order which is presently under appeal before the District Court. The Supreme Court stated recently, “The filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982); Leonhard v. U.S., 633 F.2d 599, 609-10, (2d Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981) (“Once a proper appeal is taken, the district court may generally take action only in aid of the appeal or to correct clerical errors as allowed by the Federal Rules of Civil (or Criminal) Procedure.”). The “jurisdictional significance” of a pending appeal noted by the Supreme Court applies to bankruptcy courts as well. [T]he filing of a notice of appeal to a district court divests a bankruptcy court of jurisdiction to proceed with respect to matters raised by such appeal. In re Neuman, 67 B.R. 99, 101 (S.D.N.Y.1986); In re Emergency Beacon Corp., 58 B.R. 399, 402 (Bankr.S.D.N.Y.1986); In re Overmyer, 53 B.R. 952, 954 (Bankr.S.D.N.Y.1985); In re Kendrick Equipment Corp., 60 B.R. 356, 358 (Bankr.W.D.Va. 1986); In re Hardy, 30 B.R. 109, 111 (Bankr.S.D.Ohio 1983). The divestment of jurisdiction is meant to preserve the integrity of the appellate process by avoiding the needless confusion which would assuredly flow from putting the same issue before two courts at once. In re Emergency Beacon Corp., supra, 58 B.R. at 402, citing, 9 Moore’s Federal Practice, ¶ 203.11 (2d ed. 1985); In re Kendrick, 60 B.R. at 358; Matter of Urban Development Ltd., Inc., 42 B.R. 741, 743-4 (Bankr.M.D.Fla.1984). In re Wonder Corporation of America, 81 B.R. 221, 224 (Bankr.D.Conn.1988); In re Air Vermont, Inc., 47 B.R. 537 (Bankr.D. Vt.1985). This divestiture of jurisdiction has been held to apply to motions pursuant to FRCP 60(b). The rule in this district is" } ]

[ { "docid": "1173995", "title": "", "text": "notice of lien with the Department of Motor Vehicles. Therefore, no security interest was perfected in the Corvette. Fla. Stat. § 319.27 (1987). This being the case, Defendant maintains the sale of the Corvette did not deprive the Plaintiff of any recognizable legal interest. Defendant’s argument is erroneous. While the failure to perfect a lien may render such lien subordinate to the rights of third parties, as between the Debtor and creditor, the security interest is valid and the Debtor is es-topped from denying its validity. Waukesha State Bank v. Sindic (In re Sindic), 44 B.R. 167, 172 (Bankr.E.D.Wisc.1984); People’s Savings Bank of Breckton v. Cardillo (In re Cardillo), 39 B.R. 548 (Bankr.D.Mass.1984). With the insight that the security interest is property for purposes of Section 523(a)(6), the Court must now determine whether the Defendant’s sale of the Corvette to a third party, thereby terminating Plaintiff’s security, constituted a willful and malicious injury to Plaintiff’s property. The phrase “willful and malicious injury” covers a willful and malicious conversion. 124 Cong.Rec. H11096 (daily ed. Sept. 28, 1978). For purposes of Section 523(a)(6), the word “willful” means deliberate and intentional and is not synonymous with the “reckless disregard” standard. H.R.Rep. No. 595, 95th Cong., 1st Sess. 365 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. The word “malicious” means the debtor’s conduct was in conscious disregard of another’s rights. Cardillo, 39 B.R. at 550. Plaintiff has the burden of proving the Defendant’s conduct was willful and malicious. Id. Where a debtor has disposed of collateral without the permission or knowledge of the lienholder, and the debtor understands the effect of the security agreement, such unauthorized disposition constitutes a willful and malicious conversion so as to render the debt arising therefrom nondischargeable. Id. at 550. Defendant maintains that prior to selling the Corvette to a third party, Defendant advised Plaintiff of his intention to sell the vehicle. The Defendant further maintains the Plaintiff gave Defendant permission to sell the vehicle. Plaintiff disputes these contentions, arguing Plaintiff never consented to the subsequent sale of the vehicle. This Court is inclined to believe the Plaintiff" } ]

[ { "docid": "10243347", "title": "", "text": "to give collateral estoppel effect to that fact finding. In re Halpern, 810 F.2d 1061 (11th Cir.1987); Carey Lumber Co. v. Bell, 615 F.2d 370, 377 (5th Cir.1980); In re Pitner, 696 F.2d 447 (6th Cir.1982). The three elements necessary for issue preclusion were present in this case: (1) the issue of willfulness and maliciousness in the bankruptcy proceeding was identical to that issue in the civil theft case; (2) the issue of willfulness and maliciousness had been previously litigated; and (3) the determination of the issue of willfulness and maliciousness was a critical and necessary part of the judgment in the earlier civil theft action. See In re Held, 734 F.2d at 629. Thus, the bankruptcy court was not free in this instance to relitigate the specific issue of willfulness and maliciousness. In consideration of the above, we conclude that the bankruptcy court erred in not applying the doctrine of collateral es-toppel to this case. We affirm the district court’s decision which reversed the bankruptcy court’s judgment. The debt in this case was nondischargeable. AFFIRMED. . 11 U.S.C. § 523(a) provides in pertinent part that: (a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for obtaining money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider’s financial condition; (B) use of a statement in writing— (i) that is materially false; (ii) respecting the debtor’s or an insider’s financial condition; (iii) on which the creditor to whom the debt- or is liable for such money, property, services, or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive; (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny; (6) for willful and malicious injury by the debtor to another entity or to the property of another entity.... . All other elements have been established beyond peradventure, and the Latches’ vague" }, { "docid": "22026758", "title": "", "text": "(6th Cir.), cert. denied, 484 U.S. 853, 108 S.Ct. 156, 98 L.Ed.2d 112 (1987); Corsi v. Berman (In re Berman), 154 B.R. 991, 1003 (Bankr.S.D.Fla.1993); see also First National Bank v. Franklin (In re Franklin), 726 F.2d 606 (10th Cir.1984). This section provides as follows: A discharge under section 727 ... does not discharge an individual debtor from any debt— (6) for willful and malicious injury by the debtor to another entity or to the property of another entity. II U.S.C. § 523(a)(6). Plaintiff must prove these elements by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Under this provision, two distinctive mental traits must be established. First, as discussed below, “willful” is defined as intentional or deliberate. The second part of the test, maliciousness, is defined in terms of wrongfulness and without just cause or excuse. Although a finding of recklessness or reckless disregard will establish malice, it is not sufficient to show willfulness. See Blashke v. Standard (In re Standard), 123 B.R. 444, 449 (Bankr.N.D.Ga.1991). Further, constructive or implied malice may be established by showing that a debtor proceeded to perform an act with knowledge that it would harm the interest of another. Knowledge may be proven by inference and a specific intent to harm the plaintiff or actual ill-will is not required under the second part of Section 523(a)(6). See Lee v. Ikner (In re Ikner), 883 F.2d 986, 991 (11th Cir.1989); Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257, 1263 (11th Cir.1988). In construing the meaning of willfulness, however, two competing lines of authority have developed. Some courts interpret this provision as requiring proof of intent to cause injury. Others have concluded that an intent to perform the act, which necessarily leads to or results in an injury, is all that is necessary to establish willfulness under Section 523(a)(6). Using this latter definition of willfulness, courts have held, with respect to medical malpractice claims, that the willful disregard of a known duty of care and a complete and total disregard of acceptable medical practice constitutes willful" }, { "docid": "13612138", "title": "", "text": "liable for “knowingly obtaining or endeavoring to obtain the money or property of ARAMCO by means of false pretenses, fraud and deception in violation of the Florida civil theft statute.” Section 523(a)(6) precludes discharge of a debt which was created by the debtor’s willful and malicious injury to another entity or the property of another entity. The terms willful and malicious have been held to mean intentional and in conscious disregard of another’s rights. See Lee v. Ikner (In re Ikner), 883 F.2d 986 (11th Cir.1989); Hardwick v. Petsch (In re Petsch), 82 B.R. 605, 607 (Bankr.M.D.Fla.1988); People’s Savings Bank v. Cardillo (In re Cardillo), 39 B.R. 548 (Bankr.D.Mass.1984). Again, the jury’s finding that Scar-fone knowingly obtained money or property from Aramco in violation of the Florida Civil Theft Statute coincides with the elements necessary to prove nondischargeability under Section 523(a)(6). The Court of Appeals for the Eleventh Circuit has held a District Court’s finding of a violation of the Florida Civil Theft Statute conclusively establishes the elements required to be proven under Section 523(a)(6), i.e., willful and malicious injury by debtor to another’s property. In re Latch, 820 F.2d at 1163. Therefore, this Court finds the issues and elements required to prove the nondis-chargeability of a debt under Sections 523(a)(2), (4) and (6) are identical to those issues and elements litigated in the District Court. It is apparent from the record the second and third elements necessary to apply collateral estoppel have also been met. The issues were actually litigated before a jury in a trial that lasted six and one-half days and the issues previously litigated in the District Court action are an integral part of the dischargeability action. Pivotal to the collateral estoppel question is the issue of what standard of proof is required by this Court to determine a debt nondischargeable under Section 523(a)(2), (4) and (6). As stated above, the District Court’s standard of proof for fraud actions is preponderance of the evidence. Subsequent to the filing of the instant adversary proceeding, the Supreme Court determined the standard of proof in adversary proceedings under Section" }, { "docid": "16955318", "title": "", "text": "in an adversary proceeding. “Even if [McLaren] was pursuing a ‘legal’ claim, by submitting it to the bankruptcy forum he lost any Seventh Amendment jury trial right he might have asserted.” Id. at 1506. III. Fraud Under 11 U.S.C. § 523(a) Longo claims that under one or more of the following provisions of the bankruptcy laws, the subject debts are nondischargeable: § 523. Exceptions to discharge (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition; (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny; (6) for willful and malicious injury by the debtor to another entity or to the property of another entity; While the other sections are implicated, Lon-go primarily bases his cáse on the “false representation” and “fraud” provisions specified in section 523(a)(2)(A). In considering an appeal from the decision of the District Court, on appeal from the Bankruptcy Court, this Court independently reviews the Bankruptcy Court’s decision, applying the clearly erroneous standard to findings of fact and de novo review to conclusions of law. See, e.g., In re Century Boat Co., 986 F.2d 154, 156 (6th Cir.1993). It is well established that in order to except a debt from discharge under section 523(a)(2)(A) the creditor must prove that the debtor obtained money through a material misrepresentation that at the time the debtor knew was false or made with gross recklessness as to its truth. The creditor must also prove the debtor’s intent to deceive. Moreover, the creditor must prove that it reasonably relied on the false representation and that its reliance was the proximate cause of the loss. Atassi v. McLaren (In re McLaren), 990 F.2d 850, 852 (6th Cir.1993) (quoting (Coman v. Phillips (In re Phillips), 804 F.2d 930, 932 (6th Cir.1986)). Additionally, the proper burden upon Longo" }, { "docid": "19288435", "title": "", "text": "in 11 U.S.C. § 523(a) where debt is considered nondischargeable. Under subparagraph (6), any debt attributable to a “willful and malicious injury by the debtor to another entity or to the property of another entity” is nondischargeable. The policy behind 523(a)(6) was nicely summarized as follows: The purpose of this provision is to avoid rewarding debtors who engage in blameworthy conduct by preventing them from escaping liability. Because discharge in bankruptcy is an equitable form of relief by debtors, it will not be allowed in cases where debts arose from conduct involving egregious circumstances. Thus, debts for willful and malicious injury are morally distinguishable from other types of debt deserving of discharge. * * 4s * * * [ ] the policy behind Section 523(a)(6) is aimed at an aggravated type of misconduct that is socially reprehensible. Indebtedness resulting from this type of conduct is not worthy of discharge in bankruptcy. Ahrend and Thomsen, Tort Claims and Judgments as Debts for Willful and Malicious injury” Nondischargeable Under Section 523(a)(6) of the Bankruptcy Code, 100 Com. L.J. 498, 498, 531 (1995). The terms “willful” and “malicious” are separate elements, both of which must be satisfied. In re Kimzey, 761 F.2d 421, 424 (7th Cir.1985). Not surprisingly, the term “willful” has been interpreted to mean an act done deliberately or intentionally. In re Cohen, 121 B.R. 267, 270 (Bankr. E.D.N.Y.1990) (citing In re Ikner, 883 F.2d 986 (11th Cir.1989); In re Hartley, 869 F.2d 394 (8th Cir.), reh’g denied, 874 F.2d 1254 (1989); In re Bossard, 74 B.R. 730 (Bankr. N.D.N.Y.1987); In re DeRosa, 20 B.R. 307, 313 (Bankr.S.D.N.Y.1982); In re Pommerer, 10 B.R. 935, 940 (Bankr.D.Minn.1981); 3 Collier on Bankruptcy, § 523.16, p. 523 (15th ed.1989)). But, more importantly for this case, the definition of willful connotes the desire by a debtor to actually harm the creditor. “It is the injury to the creditor which must have been intentional — not the action of the debtor which caused the [injury.]” Hartley, 869 F.2d at 395 (emphasis added). The meaning of the term malicious has been the subject of substantial debate. As" }, { "docid": "23600969", "title": "", "text": "349, 362-63 (Ind.Sup.Ct.1982), the findings of fact by the District Court are entitled to collateral estoppel or issue preclusion affect in this adversary proceeding if the other elements of the test are met. The Court must next address the question of the extent of the identity of the issues that were tried by the District Court and those being tried in this adversary proceeding. The Plaintiffs have prayed that the indebtedness to them by the Debtor arising out of the District Court judgment be held nondischargeable pursuant to 11 U.S!C. § 523(a)(2)(A), (4) and (6) which provide as follows: (а) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— ****** (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition; ****** (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny; ****** (б) for willful and malicious injury by the debtor to another entity or to the property of another entity; The Court must thus review the necessary elements to be proven by the Plaintiffs to prevail under §§ 523(a)(2)(A), (4) and (6) in order to determine whether the prior District Court judgment should be afforded collateral estoppel or issue preclusion effect in the case at bar. The statutory elements that need to be proven under § 523(a)(2), (4) and (6) and the federal case law construing the same will often not be the same as is necessary to assess liability in the state court or in a federal court based on state law based on the same set of facts. For instance, while a debtor may be liable in damages for a mere technical conversion in the state court, § 523(a)(6) expressly requires that such a conversion be both “willful and malicious” in order for a debt to be held nondischargeable. Compare, Noble v. Moistner, 180 Ind.App. 414, 388 N.E.2d 620, 621 (4th" }, { "docid": "13612137", "title": "", "text": "stringent as the standard of proof in the later litigation. See Hoskins v. Yanks (In re Yanks), 931 F.2d 42, 43 n. 1 (11th Cir.1991); Halpern v. First Georgia Bank (In re Halpern), 810 F.2d 1061, 1064 (11th Cir.1987); Miller v. Held (In re Held), 734 F.2d 628, 629 (11th Cir.1984); Deweese v. Town of Palm Beach, 688 F.2d 731, 733 (11th Cir.1982). The special interrogatory jury verdict form conclusively establishes the elements of the charges in the District Court coincide with those delineated in Section 523(a)(2), (4) and (6). For example, to obtain a determination of nondischargeability pursuant to Section 523(a)(2)(A), Aramco must establish Scarfone obtained money by false pretenses, false representations, or actual fraud. The jury in the District Court answered “yes” when asked whether Scarfone was liable for \"... knowingly obtaining or endeavoring to obtain the money or property of ARAMCO by means of false pretenses, fraud and deception ...” Under Section 523(a)(4), a debt created by an act of larceny is nondischargeable. The jury in the District Court found Scar-fone specifically liable for “knowingly obtaining or endeavoring to obtain the money or property of ARAMCO by means of false pretenses, fraud and deception in violation of the Florida civil theft statute.” Section 523(a)(6) precludes discharge of a debt which was created by the debtor’s willful and malicious injury to another entity or the property of another entity. The terms willful and malicious have been held to mean intentional and in conscious disregard of another’s rights. See Lee v. Ikner (In re Ikner), 883 F.2d 986 (11th Cir.1989); Hardwick v. Petsch (In re Petsch), 82 B.R. 605, 607 (Bankr.M.D.Fla.1988); People’s Savings Bank v. Cardillo (In re Cardillo), 39 B.R. 548 (Bankr.D.Mass.1984). Again, the jury’s finding that Scar-fone knowingly obtained money or property from Aramco in violation of the Florida Civil Theft Statute coincides with the elements necessary to prove nondischargeability under Section 523(a)(6). The Court of Appeals for the Eleventh Circuit has held a District Court’s finding of a violation of the Florida Civil Theft Statute conclusively establishes the elements required to be proven under Section 523(a)(6)," }, { "docid": "11554007", "title": "", "text": "F.2d at 1263. Special malice need not be proved, i.e., a showing of specific intent to harm another is not necessary. Id. Constructive or implied malice can be found if the nature of the act itself implies a sufficient degree of malice. See United Bank of Southgate v. Nelson, 35 B.R. 766, 769 (N.D.Ill.1983) (quoting Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904)). The bankruptcy court applied the proper standard of willfulness. Furthermore, in finding that appellants did not prove by inference or innuendo that Ikner intended to cause the accident or resulting injury, the court applied the correct standard of maliciousness, i.e., either special malice or implied or constructive malice. The bankruptcy court also properly required proof by clear and convincing evidence. Chrysler Credit, 842 F.2d at 1264. We, accordingly, affirm the judgment of the district court, affirming the bankruptcy court’s decision. AFFIRMED. . Section 523 of the Bankruptcy Code provides: (a) A discharge under ... this title does not discharge an individual debtor from any debt— (6) for willful and malicious injury by the debtor to another entity or to the property of another entity. 11 U.S.C. sec. 523(a)(6). . To determine whether these conditions were satisfied, the bankruptcy court properly reviewed the entire record of the state proceeding and held a hearing at which the parties had the opportunity to offer evidence. See Balbirer v. Austin, 790 F.2d 1524, 1526 (11th Cir.1986) (determining the preclusive effect of a consent judgment). . This case is easily distinguishable from In re Latch, 820 F.2d 1163 (11th Cir.1987), upon which appellants rely. We held there that, in a prior litigation, the jurors’ answers to forty-seven interrogatories relating to the culpability of each party and the jury verdict entered against the debtors for civil theft \"undeniably established,” in the context of the record as a whole, the willfulness and maliciousness of the debtors' actions for purposes of non-dischargeability. Id. at 1165. Here, the state trial court made no findings of fact and there were no special verdict interrogatories, as in Latch. . We need not reach" }, { "docid": "11247037", "title": "", "text": "of § 523(a)(4) or (a)(6) claims. Debtor’s Re sponse and the attached affidavit by Debt- or dispute material facts on which Plaintiff relies. B. Non-dischargeability Standards Exceptions to discharge must be construed narrowly, Equitable Bank v. Miller (In re Miller), 39 F.3d 301, 304 (11th Cir.1994); Matter of Cross, 666 F.2d 873, 880-81 (5th Cir. Unit B 1982); Carlan v. Dover (In re Dover), 185 B.R. 85, 88 (Bankr.N.D.Ga.1995), and the burden is on the party seeking nondischargeability to prove by a preponderance of the evidence that such an exception is warranted. Lewis v. Lowery (In re Lowery), 440 B.R. 914, 921 (Bankr.N.D.Ga.2010) (citing Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)). 1. 11 U.S.C. § 523(a)(6) Section 523(a)(6) excepts from discharge an individual’s debts incurred by “willful and malicious injury by the debtor to another entity or to the property of another entity.” 11 U.S.C. § 523(a)(6). Under this section, “willful” acts are those that are “deliberate or intentional,” S. Rep. No. 95-989, at 79 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5865; H.R. Rep. No. 95-595, at 365 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6320, and a showing of mere recklessness does not establish willfulness. Kawaauhau v. Geiger, 523 U.S. 57, 64, 118 S.Ct. 974, 978, 140 L.Ed.2d 90 (1998); Lee v. Ikner (In re Ikner), 883 F.2d 986, 989 (11th Cir.1989) (citing Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257, 1262-63 (11th Cir.1988)); Fincher v. Holt (In re Holt), 173 B.R. 806, 812 (Bankr.M.D.Ga.1994) (quoting Chrysler Credit Corp. v. Smith (In re Smith), 143 B.R. 284, 291 (Bankr.M.D.Ga.1992)). The legislative history on the term “willfulness” refers to a deliberate and intentional act that necessarily leads to injury. H.R. REP. NO. 595, 95th Cong., 1st Sess. 365 (1977). “Malicious” acts under this section are “wrongful and without just cause or excessive even in the absence of personal hatred, spite, or ill will.” Matter of Holt, 173 B.R. 806, 812 (Bankr.M.D.Ga.1994). Courts have held that a wrongful act done intentionally, which necessarily produces harm or which has a substantial certainty of causing harm and is" }, { "docid": "10243348", "title": "", "text": "AFFIRMED. . 11 U.S.C. § 523(a) provides in pertinent part that: (a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for obtaining money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider’s financial condition; (B) use of a statement in writing— (i) that is materially false; (ii) respecting the debtor’s or an insider’s financial condition; (iii) on which the creditor to whom the debt- or is liable for such money, property, services, or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive; (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny; (6) for willful and malicious injury by the debtor to another entity or to the property of another entity.... . All other elements have been established beyond peradventure, and the Latches’ vague suggestions otherwise are without merit and require no discussion. . This case was decided prior to the close of business on September 30, 1981, and is binding precedent under Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981). . The word \"willful” means \"deliberate and intentional.” In re Scotella, 18 B.R. 975, 977 (Bankr.N.D.Ill.1982). \"Malicious,” as used in the discharge statute, means \"'wrongful and without just cause or excessive even in the absence of personal hatred, spite or ill-will.’ ” Id. at 977 (citations omitted). It is clear, then, that the definition of willful and malicious under the bankruptcy statute is fairly covered by the requirement of criminal intent in the civil theft statute." }, { "docid": "13612136", "title": "", "text": "of collateral estoppel, the Court finds no such waiver. Scarfone has provided no support for the allegation the defense was waived nor for the proposition the doctrine of collateral estoppel can be waived. The Court will not make a finding based on mere allegation. Therefore, Scarfone’s Motion for Summary Judgment is denied. ARAMCO’S MOTION FOR SUMMARY JUDGMENT Aramco argues Scarfone should be collaterally estopped from relitigating in this Court the same case he lost in the District Court. The Court of Appeals for the Eleventh Circuit has held the doctrine of collateral estoppel precludes a party from relitigating an issue if the following criteria are met: 1. the issue at stake must be identical to the one involved in the prior litigation; 2. the issue must have been actually litigated in the prior litigation; 3. the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in that earlier action; and 4. the standard of proof in the prior litigation must have been at least as stringent as the standard of proof in the later litigation. See Hoskins v. Yanks (In re Yanks), 931 F.2d 42, 43 n. 1 (11th Cir.1991); Halpern v. First Georgia Bank (In re Halpern), 810 F.2d 1061, 1064 (11th Cir.1987); Miller v. Held (In re Held), 734 F.2d 628, 629 (11th Cir.1984); Deweese v. Town of Palm Beach, 688 F.2d 731, 733 (11th Cir.1982). The special interrogatory jury verdict form conclusively establishes the elements of the charges in the District Court coincide with those delineated in Section 523(a)(2), (4) and (6). For example, to obtain a determination of nondischargeability pursuant to Section 523(a)(2)(A), Aramco must establish Scarfone obtained money by false pretenses, false representations, or actual fraud. The jury in the District Court answered “yes” when asked whether Scarfone was liable for \"... knowingly obtaining or endeavoring to obtain the money or property of ARAMCO by means of false pretenses, fraud and deception ...” Under Section 523(a)(4), a debt created by an act of larceny is nondischargeable. The jury in the District Court found Scar-fone specifically" }, { "docid": "10761556", "title": "", "text": "added § 101(14A) and altered §§ 523(a)(5) and (15) did not change the standard for whether an obligation is in the nature of support.”). In In re Marshall, 489 B.R. 630, 634 (Bankr.S.D.Ga.2013), the court opined: [T]he statutory changes have not invalidated prior case law. See In re Papi, 427 B.R. 457, 462, n. 5 (Bankr. N.D.Ill.2010) (“Although the Bankruptcy Abuse Prevention and Consumer Protection Act, which applies to all cases filed on or after October 17, 2005, added the term ‘DSO’ to the Code, that term was developed from the definition of a nondischargeable debt for alimony, maintenance, and support in former Section 523(a)(5). Accordingly, case law interpreting the former version of Section 523(a)(5) remains relevant and persuasive here.”) (citations omitted); In re Poole, 383 B.R. 308, 313 (Bankr.D.S.C.2007) (observing that the similarity of language in pre-BAPCPA § 523(a)(5) and post-BAPCPA § 101 (14A) makes case law applicable to pre-BAPCPA § 523(a)(5) helpful in interpreting § 101(14A)). Therefore, the Court concludes that pre-BAPCPA precedent remains relevant. 6. Claims under § 523(a)(6). Section 523(a)(6) makes nondischargeable a debt for a willful and malicious injury by the debtor to the person or property of another entity. “Willful means intentional or deliberate and can not be established merely by applying a recklessness standard.” Lee v. Ikner (In re Ikner), 883 F.2d 986, 989 (11th Cir.1989) (citations omitted). The Supreme Court in Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 977, 140 L.Ed.2d 90 (1998) held that “[t]he word ‘willful’ in (a)(6) modifies the word ‘injury,’ indicating that nondischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Malicious means “wrongful and without just cause or excessive even in the absence of personal hatred, spite or ill-will.” Sunco Sales, Inc. v. Latch (In re Latch), 820 F.2d 1163, 1166 n. 4 (11th Cir.1987) (citations omitted). The Superior Court in the Final Fee Order did not find that Mrs. Rackley intended to cause financial injury to Mr. Rackley or to Ms. Cannon. O.C.G.A. § 9-15-14 permits a court to assess attorney’s fees and costs" }, { "docid": "1156138", "title": "", "text": "lost and that the lien would be avoided under § 522(f)(2). In the present case, however, the earlier debt and security interest were not paid off or extinguished in the later transaction. Rather, the two loans were consolidated for accounting purposes, with a clear allocation of the payments to the respective purchases using the FIFO method. The debtor retained the right to a release of the security interest in the earlier purchase upon payment of the earlier debt. The Court must now determine whether the debt is nondischargeable. Code section 523(a)(6) states that “A discharge under § 727 ... does not discharge an individual debtor from any debt ... (6) for willful and malicious injury by the debtor to another entity or to the property of another entity.” The term “willful and malicious”, as used in § 523(a)(6), does not necessarily mean ill will, spite, or personal hatred. An act injuring the property interests of another is willful and malicious for § 523(a)(6) purposes if it is without knowledge or consent, intentional, and unjustified or unexcused. See In re Singleton, 37 B.R. 787, 792 (Bkrtcy.D.Nev.1984); Matter of Graham, 7 B.R. 5, 7 (Bkrtcy.D.Nev.1980). When a debtor intentionally and knowingly sells collateral without the knowledge or consent of the secured creditor, the sale constitutes a willful and malicious act. The debt which the collateral secured then becomes nondischargeable under § 523(a)(6). See In re Cardillo, 39 B.R. 548, 551 (Bkrtcy.D.Mass.1984); In re Thomas, 36 B.R. 851, 853 (Bkrtcy.W.D.Ky. 1984); In re Clark, 30 B.R. 685, 687 (Bkrtcy.W.D.Ok.1983); In re Howard 6 B.R. 256, 258 (Bkrtcy.M.D.Fla.1980). In this case, the debtor was aware of Bond’s security interest in the jewelry. Nevertheless, the debtor sold it intentionally and without the creditor’s knowledge or consent causing injury to Bond’s interest in the jewelry. The debt, therefore, is nondis-chargeable. The foregoing shall constitute findings and conclusions. Plaintiff shall submit a form of judgment for entry by the Court." }, { "docid": "11766075", "title": "", "text": "56(c). A moving party is entitled to summary judgment if the nonmoving party has “failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). We review the bankruptcy court’s grant of summary judgment de novo, applying the same legal standards used by the trial court. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1117 (11th Cir.1993). Section 523(a)(6) of the Bankruptcy Code excepts from discharge in bankruptcy “any debt ... for willful and malicious injury by the debtor to another entity or to the property of another entity.” 11 U.S.C. § 523(a)(6). We have interpreted “willful” to require “a showing of an intentional or deliberate act, which is not done merely in reckless disregard of the rights of another.” Lee v. Ikner (In re Ikner), 883 F.2d 986, 991 (11th Cir.1989) ; Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257, 1263 (11th Cir.1988). As used in section 523(a)(6), “malicious” means “ ‘wrongful and without just cause or excessive even in the absence of personal hatred, spite or ill-will.’” In re Ikner, 883 F.2d at 991 (quoting Sunco Sales, Inc. v. Latch (In re Latch), 820 F.2d 1163, 1166 n. 4 (11th Cir.1987)). Malice may be implied or constructive. Id. (“Constructive or implied malice can be found if the nature of the act itself implies a sufficient degree of malice.”). In other words, “a showing of specific intent to harm another is not necessary.” Id. It is undisputed that Walker’s failure to obtain insurance was a willful act in that it was not the result of an accident or inadvertence, but was founded upon a putatively mistaken belief. Thus, the central issue in this ease is whether a deliberate and intentional act that results in injury may constitute a “willful and malicious injury” under section 523(a)(6), or whether the debt- or must intend the actual injury before the resulting debt may be nondischargeable. The majority of circuits that have addressed this issue" }, { "docid": "18674170", "title": "", "text": "cited by the ALWANS, with the exception of both Hulvey and Ru-bitschung, have involved Section 523(a)(2), and claim that a different rule should apply to Section 523(a)(4) and (a)(6). In arguing that Section 523(a)(4) and (a)(6) encompass awards for punitive damages, the MOV-ANTS emphasize the actual wording of those provisions. Section 523(a) provides, in pertinent part: (a) A discharge ... does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition; (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny; (6) for willful and malicious injury by the debtor to another entity or to the property of another entity. 11 U.S.C. Section 523(a). The MOVANTS contend that the language of Section 523(a)(4) and (a)(6) does not limit the nondischargeability of the debt as does Section 523(a)(2), but rather that Section 523(a)(4) excepts a debt for fraud of a fiduciary and that Section 523(a)(6) excepts a debt for willful and malicious injury. The MOVANTS assert that the punitive damage portion of the award fits squarely within the language of those provisions. The MOVANTS cite a number of cases which have held that punitive damages are nondischargeable under Section 523(a)(4) or (a)(6). Several of those cases, however, did not directly discuss the issue of the dischargeability of punitive damages and thus do not lend much support to the MOVANTS’ position. In In re Adams, 761 F.2d 1422 (9th Cir.1985), a case relied on in cases cited by the MOVANTS, the court rejected the debtor’s contention that only an award of punitive damages was nondischargeable under Section 523(a)(6), holding that both compensatory and punitive damages were nondis-chargeable. Relying on one of its earlier decisions decided under the Bankruptcy Act, the court said: In Coen v. Zick, 458 F.2d 326 (9th Cir.1972, ... [w]e concluded that the exception to discharge turns upon the nature of the act which gave rise to the" }, { "docid": "5873417", "title": "", "text": "if he: 1. Knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another with the intent to deprive the owner thereof; 2. Knowingly obtains the property of another by deception or by threat with the intent to deprive the owner the owner thereof, or intentionally deprives another of his property by deception or by threat; or 3. Knowingly receives, retains, or disposes of property of another which has been stolen, with the intent to deprive the owner thereof. N.D.Cent.Code § 12.1-23-01 (1985) (emphasis added). Although the mens rea for each subsection is identical, it is subsection 1 that the debtor was charged with and presumably convicted of. See Exhibit 7. Three elements must exist under subdivision 1 in order to establish theft of property: “(1) knowingly (2) takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another (3) with intent to deprive the owner thereof.” State v. Johnson, 425 N.W.2d 903, 905 (N.D. 1988). In setting forth its articulation of the statutory elements, the district court which reviewed the defendant’s conviction in this ease stated that “the crime of theft requires a deliberate and willful act, accompanied by a criminal motive.” Exhibit 5. 11 U.S.C. § 523(a)(6) excepts from discharge any debt “for willful and malicious injury by the debtor to another entity or to the property of another....” 11 U.S.C. § 523(a)(6) (emphasis added). Since it is the nature of the act or conduct which gives rise to liability that is determinative under § 523(a)(6), both compensatory and punitive damages which result from a willful and malicious injury are nondischargeable in this circuit. Johnson v. Miera (In re Miera), 926 F.2d 741, 745 (8th Cir.1991). The terms “willfulness” and “maliciousness” which reference the state of mind of a wrongdoer in creating a nondischargeable debt, each constitute a separate element that must be established by a preponderance of the evidence. The element of “willfulness” is defined as conduct that is deliberate or intentional. In re Miera, 926 F.2d at 744. Conduct" }, { "docid": "22029160", "title": "", "text": "punitive award is excepted from Defendants’ discharge under section 523(a)(2)(A), the Court declines to decide the issue under sections 523(a)(4) and (a)(6). Next, the Court turns to the issue of treble damages II. TREBLE DAMAGES UNDER FLORIDA’S CIVIL THEFT STATUTE Defendants specifically and concisely briefed the issue of nondischargeability of treble damages under Fla.Stat. § 812.014 (1992). Defendants distinguish their ease from binding case law that has interpreted section 523(a)(6) as allowing treble damages awarded under Fla.Stat. § 812.014 to be excepted from debtors’ discharge. (Defendants’ Brief at 1-2) The Eleventh Circuit Court of Appeals has held that damages arising out of a violation of Fla.Stat. § 812.014 is not dischargeable under section 523(a)(2)(A). See Sunco Sales, Inc. v. Latch (In re Latch), 820 F.2d 1163 (11th Cir.1987). In Latch, a judgment creditor appealed the bankruptcy court’s judgment not excepting from debtors’ discharge an award of damages arising from a violation of Fla.Stat. § 812.014. Id. at 1165. The creditor argued the debtor should not be granted a discharge under section 523(a)(6) because the state court jury’s findings of liability under Fla.Stat. § 812.014 is enough to establish nondisehargeability under the section 523(a)(6) language of “willful and malicious injury.” Id. The federal district court agreed with the creditor and reversed the bankruptcy court’s decision. Id. The Eleventh Circuit affirmed. Id. The Court of Appeals addressed whether the creditor proved the “willful and malicious” element necessary to establish nondisehargeability under section 523(a)(6). Id. The Court of Appeals held that the statutory language of Fla.Stat. 812.014 requires a showing of “intent,” and this showing of intent satisfies the “willful and malicious” element of section 523(a)(6). Id. The Court of Appeals reasoned that the statutory language of Fla.Stat. § 812.014 clearly requires intent to do a wrongful act, not mere negligence or recklessness. Id. Thus, one can conclude that because a defendant is convicted under Fla.Stat. § 812.014, that the defendant is also “willful and malicious” within the meaning of section 523(a)(6). Id. Defendants also direct the Court’s attention to Johnson v. Keene (In re Keene), 135 B.R. 162 (Bankr.S.D.Fla.1991), where an award" }, { "docid": "12416795", "title": "", "text": "the circumstances of this case, all elements of collateral estop-pel have been satisfied, and that defendant is therefore precluded from litigating those issues already determined by the state court. The Court must now decide whether plaintiffs have established that defendant’s debt is nondischargeable under sections 523(a)(2)(A), 523(a)(4) and/or 523(a)(6). In deciding this issue, the Court accepts, under the doctrine of collateral estoppel, those findings already made by the state court. The parties also presented additional testimony with regard to the discharge-ability question, and the Court has considered that evidence. Section 523 provides, in pertinent part, as follows: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt ... (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud ... (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny ... (6) for willful and malicious injury by the debtor to another entity or to the property of another entity ... 11 U.S.C. §§ 523(a)(2)(A), (4) and (6). To succeed in an action under section under section 523(a)(2)(A), plaintiffs must establish that 1) debtor made a representation, 2) debtor knew the representation was false, 3) it was made with the intent to deceive, 4) plaintiffs relied on the representation, and 5) plaintiffs suffered a loss as a result of the representation. In re Saunders, 37 B.R. 766, 768 (Bankr.N.D.Ohio 1984). See also, In re Hammill, 61 B.R. 555, 556 (Bankr.E.D.Pa.1986). The term “false pretense” in Section 523(a)(2)(A) “generally denotes a misrepresentation implied from purposeful conduct creating a false impression.” Matter of Garthe, 58 B.R. 62, 64 (Bankr.M.D.Fla.1986); In re Brooks, 4 B.R. 237, 238 (Bankr.S.D.Fla.1980). Additionally, “[t]he fraud included in this section is the type of fraud which, in fact, involves moral turpitude or intentional wrong and fraud implied in law which may exist without imputation of bad faith or immorality is insufficient.” Matter of Fordyce, 56 B.R. 102, 104 (Bankr.M.D.Fla.1985). Likewise, for purposes of section 528(a)(4)," }, { "docid": "13612139", "title": "", "text": "i.e., willful and malicious injury by debtor to another’s property. In re Latch, 820 F.2d at 1163. Therefore, this Court finds the issues and elements required to prove the nondis-chargeability of a debt under Sections 523(a)(2), (4) and (6) are identical to those issues and elements litigated in the District Court. It is apparent from the record the second and third elements necessary to apply collateral estoppel have also been met. The issues were actually litigated before a jury in a trial that lasted six and one-half days and the issues previously litigated in the District Court action are an integral part of the dischargeability action. Pivotal to the collateral estoppel question is the issue of what standard of proof is required by this Court to determine a debt nondischargeable under Section 523(a)(2), (4) and (6). As stated above, the District Court’s standard of proof for fraud actions is preponderance of the evidence. Subsequent to the filing of the instant adversary proceeding, the Supreme Court determined the standard of proof in adversary proceedings under Section 523 is preponderance of evidence. Grogan v. Garner, — U.S. —, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re Yanks, 931 F.2d at 42; Melnick v. Seifert (In re Seifert), 130 B.R. 607 (Bankr.M.D.Fla.1991). The Supreme Court did not articulate whether Grogan would be applied retroactively, but the Eleventh Circuit, without explicitly holding, did apply Grogan retroactively in In re Yanks. Assuming Grogan does apply retroactively, the standard of proof in this Court is identical to the standard of proof in the prior District Court litigation, and thus Scarfone is collaterally estopped from relitigating in this Court the same factual and legal issues which were previously litigated in the District Court. Prior to the Supreme Court’s decision in Grogan, the federal Courts of Appeals had been divided on the appropriate standard of proof in a Section 523(a)(2), (4) or (6) non-dischargeability action. The Eleventh Circuit had held the proper standard to prove fraud under a Section 523(a)(2), (4) or (6) action is clear and convincing. See In re Ikner, 883 F.2d at 986; Chrysler" }, { "docid": "18560096", "title": "", "text": "by Section 523(a)(2)(A) and (B) is satisfied upon documentary evidence from the debtor’s loan file, showing the written terms and conditions of the loan agreement”. 94 B.R. at 668. Documents included in the Drown loan file of NOF included: (1) purchase money adjustable rate deed of trust note, (2) purchase money land deed of trust, (3) financial statement, and (4) evidence of verification. Based on the evidence presented, and on the law cited in this opinion, the Court finds that the burden of proving the elements necessary to establish an exception to discharge under section 523(a)(2)(B) in regard to the Steven Drown loan have been met by the FDIC. Additionally, the Court notes that the element of reliance, although proven here, is presumed under the application of In re Figge and In re Cerar, as previously cited. E. Additionally, the FDIC alleges violation of § 523(a)(6) by Lefeve’s submission of the. materially false financial statement in connection with the Drown loan. Section 523(a)(6) provides that: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (6) for willful and malicious injury by the debtor to another entity or to the property of another entity ... 11 U.S.C. § 523(a)(6). In In re Fondren, 119 B.R. 101 (Bankr.S.D.Miss.1990), this Court addressed the requirements for a willful and malicious injury under section 523(a)(6): The court next considers whether a violation of section 523(a)(6) occurred thus rendering the debt to Guaranty Corporation nondischargeable. As stated above, section 523 provides that a discharge under section 727 does not discharge an individual from any debt for willful and malicious injury to another entity or to the property of another entity. In In re Hendry, 77 Bankr. 85 (Bankr.S.D.Miss.1987), the following was stated: [T]he legislative history of § 523(a)(6) provides in the Committee Reports of the United State House of Representatives and Senate that: Paragraph (6) excepts debts for willful and malicious injury by the debtor to another person or to the property of another person. Under this paragraph, “willful” means deliberate or intentional. To the extent" } ]

[ { "docid": "22324109", "title": "", "text": "unanimously held that a public figure “may not recover for the tort of intentional infliction of emotional distress . . . without showing. . . that the publication contains a false statement of fact which was made . . . with knowledge that the statement was false or with reckless disregard as to whether or not it was true.” Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 56 (1988). Nor can the fact that the defendant published the defamatory material in order to increase its profits suffice to prove actual malice. The allegedly defamatory statements at issue in the New York Times case were themselves published as part of a paid advertisement. 376 U. S., at 265-266. If a profit motive could somehow strip communications of the otherwise available constitutional protection, our cases from New York Times to Hustler Magazine would be little more than empty vessels. Actual malice, instead, requires at a minimum that the statements were made with a reckless disregard for the truth. And although the concept of “reckless disregard” “cannot be fully encompassed in one infallible definition,” St. Amant v. Thompson, 390 U. S. 727, 730 (1968), we have made clear that the defendant must have made the false publication with a “high degree of awareness of. . . probable falsity,” Garrison v. Louisiana, 379 U. S. 64, 74 (1964), or must have “entertained serious doubts as to the truth of his publication,” St. Amant, supra, at 731. Certain statements in the Court of Appeals’ opinion, when read in isolation, appear to indicate that the court at times substituted the professional standards rule for the actual malice requirement and at other times inferred actual malice from the newspaper’s motive in publishing Thompson’s story. Nevertheless, when the opinion is read as a whole, it is clear that the conclusion concerning the newspaper’s departure from accepted standards and the evidence of motive were merely supportive of the court’s ultimate conclusion that the record “demonstrated a reckless disregard as to the truth or falsity of Thompson’s allegations and thus provided clear and convincing proof of ‘actual malice’ as" } ]

[ { "docid": "2313000", "title": "", "text": "he or she first establish with “convincing clarity” that the defendant published a defamatory falsehood with “actual malice.” Id. at 285-86, 84 S.Ct. 710. The Court later extended the same test to defamation suits brought by public figures. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 335-36 & n. 7, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). As we noted above, the Supreme Court interpreted the term “actual malice” to require proof that the defendant published a statement with knowledge of its falsity or “with [a] high degree of awareness of [the publication’s] probable falsity,” Garrison, 379 U.S. at 74, 85 S.Ct. 209, or while “the defendant in fact entertained serious doubts as to the truth of [the] publication,” St. Amant, 390 U.S. at 731, 88 S.Ct. 1323. See also Gertz, 418 U.S. at 335 n. 6, 94 S.Ct. 2997 (1974) (requiring proof of “subjective awareness of probable falsity”) (citing St. Amant, 390 U.S. at 731, 88 S.Ct. 1323). In Gertz, decided some ten years after Sullivan, the Supreme Court turned to the question of what standard the First Amendment required private defamation plaintiffs to meet in defamation cases. The Court held, inter alia, “that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” 418 U.S. at 347, 94 S.Ct. 2997. The vast majority of states subsequently decided that the “appropriate standard of liability” left for them to decide by Gertz is negligence. See Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 139 N.J. 392, 404 n. 1, 655 A.2d 417, 423 n. 1 (1995) (collecting state authority). The New York State Court of Appeals, however, chose a different path. It held in Chapadeau that “where the content of the article is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition, the party defamed may recover” if he or she can establish “by a preponderance of the evidence, that the publisher acted in a grossly irresponsible" }, { "docid": "1242709", "title": "", "text": "it is used to define New York Times malice, requires that the publisher act with a ‘high degree of awareness of . probable falsity’ in printing the subject matter in question. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 3003, 41 L.Ed.2d 789 (1974); Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). It is clear that ‘mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth.’ Gertz, supra [418 U.S. 323], 94 S.Ct. at 3003; Beckley Newspaper Corp. v. Hanks, 389 U.S. 81, 84-85, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967). Rather, the defendant must, in fact, entertain serious doubts as to the truth of the publication to be guilty of recklessness. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). The burden of proving actual malice on the part of the defendant, which is undoubtedly a very difficult and demanding burden, must be shouldered entirely by the plaintiff. Such a stringent burden results from the deep-rooted belief that ‘speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison, supra, 379 U.S. at 74-75, 85 S.Ct. [209] at 216. Indeed, this heavy burden which is placed upon plaintiffs — and which appellant must sustain in the present appeal — is designed to minimize the ‘chilling effect’ that libel suits invariably have on the exercise of First Amendment rights by publishers, Time, Inc. v. McLaney, 406 F.2d 565, 566 (5th Cir. 1969), and, as counsel for appellee noted during oral argument on appeal, ‘to prevent persons from being discouraged in the full and free exercise of their First Amendment rights. . . . ’ Washington Post Company v. Koegh, 125 U.S.App.D.C. 32, 365 F.2d 965, 968 (1966). The initial question for this Court to determine on appeal is whether the pleadings and affidavits show that the material facts about which there can be no genuine issue entitle defendant to judgment as a matter of law. “First of all, we find merit in, and are persuaded by" }, { "docid": "11189983", "title": "", "text": "Supreme Court held that in order to prevail in a defamation action a public official must prove “that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. at 279-80, 84 S.Ct. at 725-26. In Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct 1975, 18 L.Ed.2d 1094 (1967), the Court extended this requirement of proof to public figures. The Court has formulated the actual malice standard as requiring a showing that the statement was made with a “high degree of awareness of ... probable falsity,” Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed. 125 (1964), and in another case as requiring “sufficient evidence to permit the conclusion 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, 1325, 20 L.Ed.2d 262 (1968). A plaintiff required to prove actual malice under the New York Times v. Sullivan standard must do so with “convincing clarity.” 376 U.S. at 285-86, 84 S.Ct. at 728-29. This requirement, now the “clear and convincing proof” test, Gertz v. Robert Welch, Inc., 323 U.S. at 342, 94 S.Ct. at 3008; see Bruno & Stillman, 633 F.2d at 586 n. 2, calls for the plaintiff to prove more than would be necessary under the preponderance of the evidence standard but something less than what the beyond a reasonable doubt standard requires. Yiamouyiannis v. Consumers Union of the United States, Inc., 619 F.2d 932, 940 (2d Cir.1980); R. Sack, supra note 7, at 225. Although these distinctions are fine, the standard of proof adopted reflects the value that society places on the underlying right involved. Cf. Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979) (discussing the clear and convincing proof standard in the context of the due process clause). The right of free speech and the concern about “the practical impact upon truthful speech” — which is “the whole point" }, { "docid": "18699137", "title": "", "text": "and the Union Leader, he is often the subject of national and regional media coverage.” Complaint ¶ 6. Thus, as another federal court recently found, Loeb’s own description of himself “neatly fits the Supreme Court’s recent definition of public figures . . . .” Loeb v. Globe Newspaper Co., 489 F.Supp. 481 at 485 (D.Mass. 1980). As a public figure, plaintiff must show that the allegedly libelous statements were published with “actual malice.” Plaintiff has not shown, through depositions or affidavits, that any of the allegedly libelous statements were published with knowledge of their falsity. Therefore, he can prevail only if he demonstrates with “convincing clarity” that defendants published the statements with reckless disregard of whether they were true. Reckless disregard may be found where the publisher of a statement had a “high degree of awareness of . [its] probable falsity,” Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964), or “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). Only if there is a factual basis upon which a jury could find a “subjective awareness of probable falsity,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 335 n. 6, 94 S.Ct. 2997, 3005, 41 L.Ed.2d 789, can defendants’ motion for summary judgment be denied. See Wasserman v. Time, Inc., 424 F.2d 920, 922 (D.C.Cir.1970) (Wright, J. concurring), cert. denied, 398 U.S. 940, 90 S.Ct. 1844, 26 L.Ed.2d 273 (1970). To support his claim of actual malice, plaintiff presents several arguments directed to defendants’ investigative practices. First, Loeb claims that it was reckless for Anson and Weil not to check with him as to the accuracy of information obtained from biased sources. However, there is no evidence that these sources, even if biased, would necessarily provide false information. More important, plaintiff has not shown that the defendants’ reliance upon any of the allegedly biased individuals was unreasonable. In any event, failure to verify statements with the plaintiff and reliance upon some biased sources, in themselves," }, { "docid": "2312999", "title": "", "text": "show that the defendant was grossly irresponsible to establish liability. See Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 199, 341 N.E.2d 569, 571, 379 N.Y.S.2d 61, 64 (1975). We do not hold that the common-law privileges are unavailable with respect to communications by and through the media under New York law, nor even that they do not protect Prudential in the case at bar. Were we forced to reach the issue, we might be inclined to certify to the New York Court of Appeals the question whether New York common-law privilege covers statements to the general public under the circumstances of this ease. We decline to do so, however, because we can affirm the judgment of the district court on different and firmer footing: the Chapadeau standard. III. Analysis under Chapadeau A. Development of the Chapadeau Standard In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court held that for a public official to succeed in a defamation suit, the First Amendment requires that he or she first establish with “convincing clarity” that the defendant published a defamatory falsehood with “actual malice.” Id. at 285-86, 84 S.Ct. 710. The Court later extended the same test to defamation suits brought by public figures. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 335-36 & n. 7, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). As we noted above, the Supreme Court interpreted the term “actual malice” to require proof that the defendant published a statement with knowledge of its falsity or “with [a] high degree of awareness of [the publication’s] probable falsity,” Garrison, 379 U.S. at 74, 85 S.Ct. 209, or while “the defendant in fact entertained serious doubts as to the truth of [the] publication,” St. Amant, 390 U.S. at 731, 88 S.Ct. 1323. See also Gertz, 418 U.S. at 335 n. 6, 94 S.Ct. 2997 (1974) (requiring proof of “subjective awareness of probable falsity”) (citing St. Amant, 390 U.S. at 731, 88 S.Ct. 1323). In Gertz, decided some ten years after Sullivan, the Supreme Court turned to the question" }, { "docid": "10496126", "title": "", "text": "personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury. Id. Compensatory damages are thus limited to compensation for actual injury, proven by competent evidence, although what constitutes actual injury is broadly defined. The standard of the Constitutional limitation on the award of punitive damages is stated in two places in Gertz. The Court states its holding as follows: “we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” 418 U.S. at 349, 94 S.Ct. at 3011. After a discussion of the dangers of punitive damage awards in defamation actions against media defendants, the Court summarizes its holding: “In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by [New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ] may recover only such damages as are sufficient to compensate him for actual injury.” 418 U.S. at 350, 94 S.Ct. at 3012. The New York Times standard requires defamation plaintiffs who are public figures or public officials to prove “actual malice”, that is, knowing falsity or reckless disregard of the truth or falsity of the defamatory statement, to establish liability. 376 U.S. at 280, 84 S.Ct. at 726. The standard has been further defined in a series of Supreme Court cases. 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 U.S. 323, 335 n. 6, 94 S.Ct. 2997, 3005 n. 6, 41 L.Ed.2d 789 (1974). This standard makes it “essential to proving liability that the plaintiff focus on the conduct and state of" }, { "docid": "8753753", "title": "", "text": "in which they held this status. This means that, as a constitutional matter, in order to recover damages from these media defendants, the plaintiffs had to prove that they acted with actual malice. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974). Actual malice is not simply ill will; it is the making of a statement with knowledge that it is false, or with reckless disregard of whether it is true. Id. at 328, 94 S.Ct. at 3001. The test is not an objective one, for the Supreme Court has noted that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968) (emphasis added). This does not mean, of course, that actual malice cannot be proved inferentially. The plaintiff need not obtain an admission of fault from the defendant. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Id. at 732, 88 S.Ct. at 1326. To prevail in a libel trial, not only must the public-figure plaintiff prove the existence of actual malice; he must prove it with “convincing clarity,” New York Times v. Sullivan, 376 U.S. 254, 285-86 (1964), or to use the Court’s more recent language, with “clear and convincing proof,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). . Moreover, judges are not merely to determine whether the finder of" }, { "docid": "16094035", "title": "", "text": "of proving the required actual malice. Additionally, appellee asserts that the court below was correct in treating its sqcond motion for summary judgment as a motion to dismiss since that motion concerned only the sufficiency of the allegations in Count I and not factual material. In any event, it is appellee’s position that appellant’s failure to allege special damages in her complaint was fatally deficient as a matter of law. Appellee, therefore, urges this Court to affirm the judgment of the district court. The principle espoused in the landmark case of New York Times Co. v. Sullivan, supra, simply stated, is that a public official is prohibited from recovering damages for a defamatory falsehood relating to his official conduct unless he proves “actual malice” — that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. The concept of recklessness, as it is used to define New York Times malice, requires that the publisher act with a “high degree of awareness of . probable falsity” in printing the subject matter in question, Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 3003, 41 L.Ed.2d 789 (1974); Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). It is clear that “mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth.” Gertz, supra, 94 S.Ct. at 3003; Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 84-85, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967). Rather, the defendant must, in fact, entertain serious doubts as to the truth of the publication to be guilty of recklessness. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). The burden of proving actual malice on the part of the defendant, which is undoubtedly a very difficult and demanding burden, must be shouldered entirely by the plaintiff. Such a stringent burden results from the deep-rooted belief that “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison, supra, 379 U.S. at 74-75, 85 S.Ct. at" }, { "docid": "11694442", "title": "", "text": "notice since the first motion to dismiss that they must adequately plead “of and concerning.” They have failed to do so. This is not a failure which additional time or amendments can cure. In view of the burden on defendant’s exercise of its First Amendment rights which would be imposed by unnecessarily prolonging this litigation, the complaint is dismissed with prejudice for failure to state a claim. II. Inadequate Allegations of Malice Defendants also moved to dismiss the complaint on the ground that plaintiffs failed adequately to plead malice as defined by the Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710,11 L.Ed.2d 686 (1964), and its progeny. New York Times required plaintiffs who are public officials to prove malice in the sense of publication of false statements with knowing or reckless disregard for the truth. Subsequent Supreme Court cases have made it clear that malice is very difficult to prove, requiring plaintiffs to show that defendant had “a high degree of awareness of probable falsity,” Garrison v. Louisiana, 379 U.S. 64, 74-79, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964), and “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), such that defendant had a “subjective awareness of probable falsity.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 335 n. 6, 94 S.Ct. 2997, 3005, n. 6, 41 L.Ed.2d 789 (1974). The Supreme Court has extended this requirement to public figures, see Gertz v. Robert Welch, Inc., 418 U.S. at 335-36, 94 S.Ct. at 3005, and plaintiffs have admitted that they are public figures for purposes of this lawsuit. Although this court dismisses the complaint for failure to plead “of and concerning,” it is appropriate to rule on the malice issue because of the important First Amendment interests implicated in this lawsuit. The original complaint contained only broad, conclusory allegations of malice, such as that defendant acted “wantonly,” “recklessly” and “with constructive knowledge” of the falsity of the article. The court required plaintiffs to" }, { "docid": "18699136", "title": "", "text": "least on matters of public interest, to restrict the cause of action available to “public figures,” i. e., those persons who command a substantial amount of public attention either by their position in society or by purposefully thrusting themselves into the forefront of particular public controversies. Curtis Publishing Co. v. Butts, 388 U.S. 130, 154-55, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094 (1967). See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 3009, 41 L.Ed.2d 789 (1974). It is clear that Loeb is a “public figure” within the meaning of these authorities. Plaintiff is referred to in the complaint as a “public figure,” and this point is conceded by his attorneys in papers submitted in opposition to defendants’ summary judgment motion. The pleadings describe Loeb as one who “regularly takes strong public stands on controversial issues . [and who] frequently criticizes the performance, or public statements of prominent persons . . . .” Complaint ¶ 4. In addition, the complaint states that “[b]ecause of the controversial nature of plaintiff Loeb and the Union Leader, he is often the subject of national and regional media coverage.” Complaint ¶ 6. Thus, as another federal court recently found, Loeb’s own description of himself “neatly fits the Supreme Court’s recent definition of public figures . . . .” Loeb v. Globe Newspaper Co., 489 F.Supp. 481 at 485 (D.Mass. 1980). As a public figure, plaintiff must show that the allegedly libelous statements were published with “actual malice.” Plaintiff has not shown, through depositions or affidavits, that any of the allegedly libelous statements were published with knowledge of their falsity. Therefore, he can prevail only if he demonstrates with “convincing clarity” that defendants published the statements with reckless disregard of whether they were true. Reckless disregard may be found where the publisher of a statement had a “high degree of awareness of . [its] probable falsity,” Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964), or “in fact entertained serious doubts as to the truth of his publication,” St. Amant v. Thompson, 390 U.S." }, { "docid": "1515552", "title": "", "text": "disregard of the truth or falsity of a publication is established by showing that the defendant “in fact entertained seri ous doubts as to [its] truth,” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968), or that the publication was made with a “high degree of awareness of [its] probable falsity.” Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964). Proof of actual malice, therefore, depends upon the defendant’s actual state of mind. Herbert v. Lando, 441 U.S. 153, 160, 99 S.Ct. 1635, 1640, 60 L.Ed.2d 115 (1979). “[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.” St. Amant, supra, 390 U.S. at 731, 88 S.Ct. at 1325. Negligence, in other words, is not enough. Probative evidence of recklessness includes a publisher’s knowledge of serious factual inconsistencies, as well as his failure to investigate or independently verify disputed or questionable factual assertions. Aafco, supra, 321 N.E.2d at 589. Recklessness may be found, for example, where there are clear reasons to doubt the truthfulness of the informant or the accuracy of his reports or where a story is fabricated by the defendant or is based entirely on an unverified anonymous telephone call. St. Amant, supra, 390 U.S. at 732, 88 S.Ct. at 1326. At the same time, proof of failure to investigate, by itself, is not sufficient to establish a publisher’s reckless disregard for the truth or falsity of the challenged publication. Gertz, supra, 418 U.S. at 332, 94 S.Ct. at 3003. This court employs the following test when applying the “convincing clarity” standard to summary judgment motions: “Unless the court finds on the basis of pretrial affidavits, depositions or other documentary evidence, that the plaintiff can prove actual malice in the [New York] Times since, it should grant summary judgment for the defendant. Carson v. Allied News Co., 529 F.2d 206, 210 (7th Cir.1976) (quoting Wasserman v. Time, Inc., 424 F.2d 920, 922-23 (D.C.Cir.) (Wright, J., concurring), cert. denied, 398 U.S. 940, 90 S.Ct. 1844, 26" }, { "docid": "16791536", "title": "", "text": "is also not necessary to our analysis to separate definitions depending on the object modified by reckless disregard, i.e., reckless disregard as to truth or falsity, as to consequences, as to rights and feelings, and so on. Cases are not consistent with respect to the role of these modified objects. In this case disregard of truth and of consequences would be indistinguishable from a practical standpoint. . Those cases prohibit a public official or public figure from recovering damages for a defamatory falsehood unless such person proves with “convincing clarity\" that the statement was made with \"actual malice” — that is, with knowledge that the statement was false or with reckless disregard of whether it was false or not. Reckless disregard is defined to mean \"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, 1325, 20 L.Ed.2d 262 (1968). See also Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964) (\"high degree of awareness of their probable falsity” required.) In Gertz, the Supreme Court partially extended the New York Times actual malice standard to defamation cases brought by private plaintiffs. In such cases, so long as fault amounting to at least negligence is established, recovery of actual damages is permitted under applicable state law defamation standards. However, absent a showing of New York Times actual malice, awards of presumed and punitive damages are not permitted. In the recent case of Green-moss, the Supreme Court confirmed that Gertz applies only where matters of public concern or interest are involved. Full discussions of the evolution of constitutional protections in defamation cases are contained in Greenmoss, Walker v. Colorado Springs Sun, Inc., 188 Colo. 86, 538 P.2d 450 (1975), Diversified, and our opinion in Dixson v. Newsweek, Inc., 562 F.2d 626, 628-30 (10th Cir.1977). . Full constitutional protection includes the higher level \"clear and convincing\" standard of proof, rather than the \"preponderance” standard employed by the district court in this case, without objection from the parties. Dun & Bradstreet does" }, { "docid": "15231826", "title": "", "text": "public figures who are not public officials, which would require only a showing that defendant’s conduct was an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers); see also Harte-Hanks, 491 U.S. at 666, 109 S.Ct. 2678 (“Today, there is no question that public figure libel cases are controlled by the New York Times standard and not by the professional standards rule, which never commanded a majority of this Court.”). The actual malice standard does not refer to a showing of ill will or malice in the ordinary sense. Rather, it requires that the plaintiff demonstrate that “the publication contains a false statement of fact which was made ... with knowledge that the statement was false or with reckless disregard as to whether or not it was true.” Harte-Hanks, 491 U.S. at 667, 109 S.Ct. 2678 (quoting Hustler Magazine v. Falwell, 485 U.S. 46, 56, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988)). The fact that the defendant published the defamatory statement in order to increase profits is insufficient to prove actual malice. Id. Rather, a showing of actual malice requires at least a showing that the statements were made with a “reckless disregard for the truth.” Id. A “reckless disregard for the truth” means that the defendant “must have made the false publication with a ‘high degree of awareness of ... probable falsity.’ ” Id. (quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964)) (alteration in original). A failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard. Id. at 688, 109 S.Ct. 2678. Instead, there must be “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” Id. (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). Thus, the failure to investigate, alone, will not support a finding of actual malice, but the “purposeful avoidance of the truth” may do so. Id. at 692. In a case" }, { "docid": "19081038", "title": "", "text": "“actual malice.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); see also Gertz v. Welch, 418 U.S. 323, 342, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Actual malice “should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991). Rather, “it is the making of a statement with knowledge that it is false, or with reckless disregard of whether it is true.” Liberty Lobby, Inc. v. Rees, 852 F.2d 595, 601 (D.C.Cir.1988), cert. denied, 489 U.S. 1010, 109 S.Ct. 1118, 103 L.Ed.2d 181 (1989); see also Gertz, 418 U.S. at 342, 94 S.Ct. 2997 (“public figures ... may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth”). “The test for the reckless disregard of the truth is not whether a reasonably prudent person would have published the statement, but rather, whether there is ‘sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.’ ” Liberty Lobby, 852 F.2d at 601 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). “Furthermore, the first amendment requires that a public figure bear the burden of proving ... actual malice.” Id. at 598. Thus, to “defeat summary judgment,” a celebrity is “required to show that the evidence could support a reasonable jury finding, by clear and convincing evidence, that the defendants acted with actual malice in publishing” the alleged defamatory statements. Id. at 598. Defendants assert, and Klayman does not contest, that the appropriate standard for defamation to apply in this case is that of a public person. See Defs.’ Mot. at 30-32; see also Klayman v. Judicial Watch, Inc., Civ. Action No. 06-670, 2007 WL 140978, *17 (D.D.C. Jan. 17, 2007). Klayman by his own admission is a" }, { "docid": "18449020", "title": "", "text": "Inc., 336 F.Supp. 133, 138 (N.D.Cal.1971). Rule 56(e) of the Federal Rules of Civil Procedure requires a party opposing a motion for summary judgment to show specific facts, admissible in evidence, which establish that there is a genuine issue for trial. Moreover, under New York Times, the standard of proof plaintiff must meet at trial is more than a preponderance of evidence; it is a showing of defendant’s actual knowledge of falsity or reckless disregard of the truth by “clear and convincing evidence.” Vandenburg v. Newsweek, Inc., 507 F.2d 1024, 1026, 1029 (5th Cir. 1975); see New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, (1974). “Knowledge of falsity” presumably means just what it says: subjective awareness by the defendant that his statements were false. “Reckless disregard of the truth,” on the other hand, has been defined by several Supreme Court decisions to require that the defendant act with a “high degree of awareness of probable falsity”. Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 84, 88 S.Ct. 197, 200, 19 L.Ed.2d 248 (1967); Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). In the leading case of St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), the Court found the “reckless disregard” requirement unsatisfied where the defendant had published defamatory falsehoods about the plaintiff without personal knowledge of the matter published. The Court said: . . reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. . . . The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive . . . where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified" }, { "docid": "10496127", "title": "", "text": "Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ] may recover only such damages as are sufficient to compensate him for actual injury.” 418 U.S. at 350, 94 S.Ct. at 3012. The New York Times standard requires defamation plaintiffs who are public figures or public officials to prove “actual malice”, that is, knowing falsity or reckless disregard of the truth or falsity of the defamatory statement, to establish liability. 376 U.S. at 280, 84 S.Ct. at 726. The standard has been further defined in a series of Supreme Court cases. 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 U.S. 323, 335 n. 6, 94 S.Ct. 2997, 3005 n. 6, 41 L.Ed.2d 789 (1974). This standard makes it “essential to proving liability that the plaintiff focus on the conduct and state of mind of the defendant.” Herbert v. Lando, 441 U.S. 153, 160, 99 S.Ct. 1635, 1640, 60 L.Ed.2d 115 (1979). Although a publisher does not have an absolute duty to investigate, St. Amant v. Thompson, 390 U.S. 727, 733, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262 (1968), 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. (Gertz II), 680 F.2d 527, 538 (7th Cir.1982), cert. denied, - U.S. -, 103 S.Ct. 1233, 75 L.Ed.2d 467 (1983). Although the Supreme Court’s opinion in Gertz clearly adopts the standard of conduct set forth in New York Times v. Sullivan as a predicate to the award of punitive damages in a private figure defamation case, Gertz does not explicitly state what standard of proof should be applied. In public figure cases, actual malice, or “Times malice,” must be shown by clear and convincing evidence before liability may be imposed. Gertz, 418 U.S. at 342, 94 S.Ct. at" }, { "docid": "17102268", "title": "", "text": "because it utilized Donald Trump as a celebrity pitchman. Trump University is a limited public figure because a public debate existed regarding its aggressively advertised educational practices. Did Trump’s famous moniker draw public attention when Trump University’s business practices proved worthy of debate? Perhaps. However, having traded heavily on the name and fame of its founder and chairman, Trump University was in no- position to complain if the public’s interest in Trump fueled the flames of the legitimate controversy that its business practices engendered. c. The district court concluded that Trump University was not a limited public figure, and thus did not reach the question of actual malice. Because Trump University is a limited purpose public figure, to prevail on its defamation claim it must establish that Makaeff made her statements with “actual malice,” i.e., knowledge of their falsity or reckless disregard of their truth. Gertz, 418 U.S. at 342, 94 S.Ct. 2997. To demonstrate reckless disregard of the truth, Trump University must show by clear and convincing evidence that Makaeff “entertained serious doubts as to the truth” of her statements. Id. at 331-32, 334 n. 6, 94 S.Ct. 2997 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968))., If Makaeff was simply republishing a third party’s allegations, mere proof of her failure to investigate the veracity of such allegations does not establish reckless disregard for the truth. Id. at 332, 94 S.Ct. 2997. Trump University would then need to show “obvious reasons” to doubt the truthfulness of the original speaker, or the accuracy of his statements. Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) (quoting St. Ammt, 390 U.S. at 732, 88 S.Ct. 1323). On appeal Trump University nevertheless argues that Makaeffs early testimonials praising Trump University indirectly prove that she acted with a high degree of awareness of the probable falsity of her later statements. However, it is plausible that Makaeff sincerely believed in Trump University’s offerings when she submitted her written and videotaped testimonials. The gist of Makaeffs complaint about Trump University" }, { "docid": "1242708", "title": "", "text": "cannot prove actual malice “in the Times sense.” In Carson the concern was the private life of a television celebrity. Here we are concerned with the public conduct of an elected public official. It is hard to find a more classical application of full blown First Amendment values as enunciated in New York Times v. Sullivan. The last word from our Court of Appeals for this Circuit is squarely on point and is highly relevant both as to reasoning and result. See Grzelak v. Calumet Publishing Co., Inc., 543 F.2d 579 (7th Cir. 1975). In it Senior Judge Grant of this Court, speaking for that Court, said: “The principle espoused in the landmark case of New York Times Co. v. Sullivan, supra, simply stated, is that a public official is prohibited from recovering damages for a defamatory falsehood relating to his official conduct unless he proves ‘actual malice’ — that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. The concept of recklessness, as it is used to define New York Times malice, requires that the publisher act with a ‘high degree of awareness of . probable falsity’ in printing the subject matter in question. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 3003, 41 L.Ed.2d 789 (1974); Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). It is clear that ‘mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth.’ Gertz, supra [418 U.S. 323], 94 S.Ct. at 3003; Beckley Newspaper Corp. v. Hanks, 389 U.S. 81, 84-85, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967). Rather, the defendant must, in fact, entertain serious doubts as to the truth of the publication to be guilty of recklessness. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). The burden of proving actual malice on the part of the defendant, which is undoubtedly a very difficult and demanding burden, must be shouldered entirely by the plaintiff. Such a stringent burden results from" }, { "docid": "1515551", "title": "", "text": "clarity.” New York Times, supra, 376 U.S. at 285-86, 84 S.Ct. at 728-29; see also Gertz, supra, 418 U.S. at 342, 94 S.Ct. at 3008 (actual malice must be established by “clear and convincing proof”). This standard is greater than a “preponderance of the evidence,” the normal civil standard, but less than “beyond a reasonable doubt,” the criminal standard. See Yiamouyiannis v. Consumers Union of the United States, 619 F.2d 932, 940 (2d Cir.), cert. denied, 449 U.S. 839, 101 S.Ct. 117, 66 L.Ed.2d 246 (1980). The plaintiff may establish actual malice by proving either that the defendant published the defamatory statement with knowledge of its falsity or with reckless disregard for whether it was false. New York Times, supra, 376 U.S. at 280, 84 S.Ct. at 726. Knowledge of falsity means simply that the defendant was actually aware that the contested publication was false. See Hutchinson v. Proxmire, 431 F.Supp. 1311, 1328 (W.D.Wis.1977), aff'd, 579 F.2d 1027 (7th Cir.1978), rev’d on other grounds, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979). Reckless disregard of the truth or falsity of a publication is established by showing that the defendant “in fact entertained seri ous doubts as to [its] truth,” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968), or that the publication was made with a “high degree of awareness of [its] probable falsity.” Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964). Proof of actual malice, therefore, depends upon the defendant’s actual state of mind. Herbert v. Lando, 441 U.S. 153, 160, 99 S.Ct. 1635, 1640, 60 L.Ed.2d 115 (1979). “[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.” St. Amant, supra, 390 U.S. at 731, 88 S.Ct. at 1325. Negligence, in other words, is not enough. Probative evidence of recklessness includes a publisher’s knowledge of serious factual inconsistencies, as well as his failure to investigate or independently verify disputed or questionable factual assertions. Aafco, supra, 321 N.E.2d at 589. Recklessness may be" }, { "docid": "13205853", "title": "", "text": "plaintiff. Falsity and damages were presumed, truth was a defense, and proof of fault was not required. See id. at 262-63, 267, 84 S.Ct. 710 (describing Alabama law); Restatement (Second) of Torts § 581A, cmt. b (1977); Restatement (Second) of Torts § 620, cmt. c (1977); 1 Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems § 2:1.1 (4th ed. 2016). In New York Times, the Supreme Court limited defamation liability by developing “standards that satisfy the First Amendment.” 376 U.S. at 269, 84 S.Ct. 710. The Court declared that a “public official” seeking “damages for a defamatory falsehood” about his “official conduct” must prove with “convincing clarity” that the statement was made with “actual malice” — that is, “with knowledge that [the statement] was false or with reckless disregard of whether it was false or not.” Id. at 279-80, 285, 84 S.Ct. 710. The “actual malice” standard — by requiring proof that the defendant published with knowledge or reckless disregard that the statement was false — also requires proof that the statement was false. See Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964) (explaining New York Times requires a public official to prove “the utterance was false”); see also Air Wisc. Airlines Corp. v. Hoeper, —U.S.-, 134 S.Ct. 852, 861, 187 L.Ed.2d 744 (2014) (“[W]e have long held that actual malice requires material falsity”). In Gertz v. Robert Welch, Inc., the Court said both public officials and public figures must prove actual malice by “clear and convincing proof.” 418 U.S. 323, 342, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Gertz also held that a defamation plaintiff must prove actual injury to recover for a false and defamatory statement about a matter of public concern. Id. at 348-49, 94 S.Ct. 2997. And in Philadelphia Newspapers, Inc. v. Hepps, the Court held that in cases involving speech about matters of public concern, the First Amendment requires all plaintiffs — public and private — to prove falsity. 475 U.S. 767, 776, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). The plaintiff “carries the burden of" } ]

[ { "docid": "9847153", "title": "", "text": "PER CURIAM. Sheila Carter appeals the district court’s orders dismissing Carter’s employment discrimination action, see Carter v. Lutheran Medical Center, 879 F.Supp. 94 (E.D.Mo.1995), and denying Carter’s motion for reconsideration. Although we are hesitant to dismiss a civil rights claim brought by a pro se litigant, Carter’s appeal must be dismissed because her brief presents no question for us to decide. See Fed. R.App. P. 28; Slack v. St. Louis County Gov’t, 919 F.2d 98, 99-100 (8th Cir.1990) (per curiam). Among other shortfalls, Carter’s brief neither provides a statement of the issues presented for our review nor identifies any basis of alleged error by the district court. Additionally, we decline to consider issues raised in the amicus brief filed by the Equal Employment Opportunity Commission, an interested nonparty which was not involved in the proceedings below. See Continental Ins. Co. v. Northeastern Pharmaceutical & Chemical Co., 842 F.2d 977, 984-85 (8th Cir.), cert. denied, 488 U.S. 821, 109 S.Ct. 66, 102 L.Ed.2d 43 (1988); Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 861-62 (9th Cir.1982). Although the amicus invites us to reach the question of individual supervisory liability under Title VII, we are unwilling to consider a significant employment law issue given Carter’s apparent failure properly to serve her employer and one of her individual supervisors. We thus leave this circuit’s “not yet addressed” issue for another day. See Carter, 879 F.Supp. at 95. We dismiss Carter’s appeal. See 8th Cir. R. 47B." } ]

[ { "docid": "16575989", "title": "", "text": "trial court has indeed made the crucial credibility determination that is afforded such great respect on appeal. United States v. Perez, 35 F.3d 632, 636 (1st Cir.1994). In conclusion, we affirm the district court’s denial of Moran’s motion for a new trial. The district court did not abuse its discretion by denying Moran’s challenges for cause, and it did not commit clear error by denying three of Moran’s peremptory challenges given the peculiar racial backdrop of this case. . The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa, sitting by designation. See Moran v. Clarke, 309 F.3d 516, 518 (8th Cir.2002) (per curiam) (holding that a district judge outside of the Eastern District of Missouri would preside over this case and appointing Judge Pratt by random drawing). . At the end of voir dire, and on his own initiative, Tate expressed his belief that the attorneys had not been clear about what the case was about. Moran claims that this statement was hostile and that Tate was also slightly antagonistic during voir dire. Defendants dispute both claims. . As a related matter, the district court's failure to strike Norman-Cook for cause is moot. Norman-Cook was subsequently dismissed by the court after Moran's successful peremptory challenge. Therefore, the denial of the motion to strike her for cause is moot, especially since Moran had unused peremptory challenges remaining at the end of voir dire, i.e., it could not be said that he suffered any prejudice by having to use a peremptory challenge to strike Norman-Cook. See United States v. Ortiz, 315 F.3d 873, 892 (8th Cir. 2002) (holding there was no abuse of discretion by district court’s refusal to strike a juror for cause because the juror ultimately did not serve on the jury and “the necessity of using a peremptory challenge does not establish actual prejudice”); cf. Fetterly v. Paskett, 163 F.3d 1144, 1148 (9th Cir.1998) (holding that defendant did not suffer actual prejudice due to pretrial publicity in part because defendant did not use all of his peremptory challenges). . Indeed, the district court" }, { "docid": "23646075", "title": "", "text": "PER CURIAM. Christopher Ray LeGear, an Iowa inmate, appeals the magistrate judge’s denial of his motion to reopen his previously-dismissed 42 U.S.C. § 1983 case based on newly-discovered evidence. We dismiss the appeal for lack of jurisdiction. LeGear claimed that prison officials violated his due process and Eighth Amendment rights by keeping him in administrative segregation without giving him specific reasons or meaningful reviews. The district court dismissed his complaint as frivolous pursuant to 28 U.S.C. § 1915(d) and denied his motion for reconsideration. LeGear appealed the order, and this court affirmed. Before we affirmed, however, LeGear moved the district court to reopen the case, alleging newly-discovered evidence. He also filed an “Application for Consideration of Special Discovery Request” and a motion for appointment of counsel. The district court referred the matter to the magistrate judge, who denied all three motions without explanation. LeGear appealed. A Federal Rule of Civil Procedure 60(b)(2) motion may be referred to a magistrate judge under 28 U.S.C. § 636(b)(3), which allows the district court to assign to the magistrate judge “additional duties ... not inconsistent with the Constitution and laws of the United States.” See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 925 F.2d 853, 856 (5th Cir.1991) (motion may be referred for proposed recommendations and findings). A magistrate judge’s decision issued pursuant to section 636(b)(3) is not a final order; initial review rests with the district court. Gleason v. Secretary of Health & Human Servs., 777 F.2d 1324, 1324 (8th Cir.1985); Loewen-America, Inc. v. Advance Distrib. Co., 673 F.2d 219, 220 (8th Cir.1982). A magistrate judge’s decision is a final order only if the parties have explicitly and unambiguously consented to the magistrate judge’s jurisdiction under section 636(c). See Henry v. Tri-Services, Inc., 33 F.3d 931, 933 (8th Cir.1994). Because the district court did not issue an order on the motion and the record does not contain a document showing that the parties consented to the magistrate judge’s jurisdiction, we vacate the order and dismiss the appeal for lack of jurisdiction. . The Honorable John A. Jarvey, United States Magistrate Judge for" }, { "docid": "22970516", "title": "", "text": "LEVAL, Circuit Judge: Thomas Dodson, acting pro se, brought a complaint alleging that he was terminated from his job with the United States Postal Service because of his race, in violation of 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”) and 42 U.S.C. § 1981. Although he attempted energetically to prosecute his case while he was pro se, all progress ceased when he retained an attorney. Eventually, the district court granted the government’s motion to dismiss for failure to prosecute. See Fed. R.Civ.P. 41(b). We find that the district court erred by failing to consider lesser sanctions and other relevant factors before imposing the severe penalty of dismissal. We therefore vacate, and remand for further proceedings. Background Dodson was a probationary employee at the Post Office in Croton-on-Hudson, New York. He was terminated from this position in May 1985, as a result of an unfavorable evaluation, which he alleges was motivated by racial animus. Proceeding pro se and in forma pauperis, Dodson pressed his claims vigorously. He began by filing a complaint with the Equal Employment Opportunity Commission (“EEOC”). When the EEOC rejected his claims, Dodson received a right-to-sue letter and promptly filed a complaint in the United States District Court for the Southern District of New York on June 15, 1987. The district court dismissed the complaint because Dodson had named the Postal Service as defendant rather than naming the Postmaster General. Still proceeding pro se, Dodson filed a motion pursuant to Fed.R.Civ.P. 60(b), seeking an order “relieving him from the judgment entered in this Court on June 28,1988, and for the entry of a new judgment that will allow him to perfect an appeal to the Court of Appeals.” In response to this motion and an intervening change of law, the government modified its earlier position that Dodson was barred on statute of limitations grounds from amending his complaint to correct the pleading error. The district court denied Dodson’s Rule 60(b) motion, but vacated its prior order in part, giving Dodson thirty days to amend his complaint. On May 1, 1989, Dodson filed an amended complaint. The government" }, { "docid": "22944523", "title": "", "text": "confirming or dispelling the suspicion of irregularity raised. This is particularly true when, as here, the Government has refused forthrightly to account for or support its critical representations of fact. Accordingly, we hold that the District Court erred in dismissing Taylor’s motion solely because the direct appeal was pending before this Court. Passing to the merits of this appeal, we must decide whether the District Court otherwise acted properly in dismissing Taylor’s motion for writ of coram nobis without the benefit of a hearing. Our task in analyzing his contention is made more difficult by the fact that the District Court, in passing on Taylor’s motion, gave only scant elaboration for its summary dismissal. The prosecuting attorney’s alleged misrepresentations, which form the basis of Taylor’s motion, are included in the trial record. As a consequence, the District Court appears to suggest in the order denying the motion, and the Government clearly argues on appeal, that any error in the trial court’s admission of Exhibit “24” was reflected in the trial record and, hence, should have been asserted in the direct appeal. Therefore, the argument proceeds, Taylor is relegated to asserting his argument, if at all, in the direct appeal and not by way of writ of error coram nobis. We have little quarrel with the proposition that ordinarily the erroneous admission of evidence at trial is an error which should be challenged by taking an appeal from the judgment of conviction. See Cauley v. United States, 294 F.2d 318, 320 (9th Cir. 1961); Barber v. United States, 197 F.2d 815 (10th Cir.) (per curiam), cert. denied, 344 U.S. 857, 73 S.Ct. 94, 97 L.Ed. 665 (1952). Yet that salutary principle finds no application here, and to invoke it is to misapprehend and obscure Taylor’s claim. The coram nobis motion does not focus on the propriety of the trial court’s reliance on the prosecuting attorney’s statements, without more, in the admission of Exhibit “24.” That matter was, properly, addressed in the direct appeal. Taylor’s collateral motion, rather, strikes at the veracity vel non of the Government’s representations to the trial court." }, { "docid": "22079386", "title": "", "text": "PER CURIAM: Gaile Pugh Gratton, substituted for her deceased husband, Kwame N. Gratton, appeals from dismissal of her husband’s complaint alleging employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and 42 U.S.C. § 1981. The district court dismissed Gratton’s case in September 1996, after Gratton failed to comply with the district court’s order to provide releases to the Employers authorizing the production of his medical records. Gratton moved for reconsideration five days later, but failed to appear for the hearing, and the district court denied the motion. Gratton then filed an affidavit asserting that he never received notice of the hearing and the district court, noting that there was a confusing and complex series of events, granted Gratton a second hearing in January 1997. At the hearing, the district court found that its orders had been ignored or responded to in a cavalier way by the plaintiff on at least four occasions, and explained that it was unwilling to place additional burdens on the defendants who were not at fault at all. The court thereafter denied Gratton’s motion for reconsideration, and instead, granted a motion to dismiss for discovery abuses previously filed by defendants. We affirm. On appeal, Gratton, an attorney proceeding pro se, argues only that the district court erroneously dismissed Gratton’s case because of his failure to provide medical releases to the defendants. Gratton claims that inadequate representation by his counsel renders dismissal too severe a sanction. In case of remand, Gratton requests assignment to a different judge. This Court reviews dismissals .under Fed.R.Civ.P. 41 and 37 for abuse of discretion. See Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985) (reviewing dismissal under Rule 41); Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir.1993) (reviewing dismissal under Rule 37). Rule 41(b) authorizes a district court to dismiss a complaint for failure to prosecute or failure to comply with a court order or the federal rules. See Fed.R.Civ.P. 41(b); Go-forth, 766 F.2d at 1535. Dismissal under Rule 41(b) is appropriate where there is a clear record of “willful” contempt and" }, { "docid": "22280323", "title": "", "text": "PER CURIAM. In the 42 U.S.C. § 1983 action underlying appeal No. 06-3007, Iowa inmate Frank R. Owens sought to proceed in for-ma pauperis (IFP). He filed several motions to amend, along with proposed amendments that added claims and allegations against additional prison-employee defendants. The district court granted leave to amend, but denied IFP status under 28 U.S.C. § 1915(g) and dismissed the complaint, concluding that Owens had three “strikes,” and that his allegations did not qualify under section 1915(g)’s imminent-danger exception. The district court identified as “strikes” two of Owens’s previously dismissed cases, and counted as a third strike this court’s summary affir-mance of the second dismissal. After the first lawsuit was dismissed and the dismissal was appealed, Owens filed the section 1983 complaint and amended complaint underlying appeal No. 07-1056, again seeking to proceed IFP. He named many of the same defendants, and made many of the same claims and allegations as in his previous lawsuit. His new allegations primarily focused on his claim that he was in imminent danger of serious physical injury, but the new allegations also arose from those he had made in his previous lawsuit. Shortly after filing his lawsuit, Owens notified the court he had been transferred to another prison. The district court denied IFP status, relying on its determination in the first lawsuit that Owens was three-strikes barred. The court further found that Owens did not qualify under section 1915(g)’s imminent-danger exception, noting that one of his alleged concerns about his safety was moot, given his transfer to another prison. The three-strikes determination is relevant to both appeals, and thus we grant Owens’s motion to consolidate the appeals. We have reviewed docket sheets and orders in the cases the district court listed as strikes in the first case. See Andrews v. King, 398 F.3d 1113, 1118 (9th Cir.2005) (reviewing de novo district court’s interpretation and application of § 1915(g)). The first case was dismissed without prejudice for failure to exhaust administrative remedies; such a dismissal is not a strike under section 1915(g). See Newingham v. Westbrook, 140 Fed.Appx. 634 (8th Cir.2005) (unpublished" }, { "docid": "23322202", "title": "", "text": "JOSÉ A. CABRANES, Circuit Judge: Sealed Plaintiff appeals from a judgment of the United States District Court for the Northern District of New York (Norman A. Mordue, Judge), dismissing sua sponte plaintiffs pro se complaint for failure to file an amended complaint in her actual name rather than a pseudonym and for other perceived pleading deficiencies. This appeal presents questions of first impression for our Court: (1) Under what circumstances may a plaintiff file a complaint using a pseudonym? and (2) What standard governs our review of a district court’s decision to permit or deny a request to file under a pseudonym? As described in greater detail below, we hold that district courts must balance a plaintiffs interest in anonymity against both (a) the public interest in disclosure and (b) the potential prejudice to defendants when determining whether to permit a plaintiff to proceed under a pseudonym. Because this balancing necessarily entails an exercise of discretion, we review such determinations for abuse of discretion. In the instant case, we conclude that the District Court, operating without the benefit of the guidance we provide herein, erred by denying plaintiffs application to litigate under a pseudonym without first balancing the relevant interests. We further conclude that the District Court did not construe plaintiffs pleadings in a manner consistent with the liberality afforded pro se litigants. Accordingly, the judgment of the District Court is vacated, and the cause is remanded for further proceedings consistent with this opinion. BACKGROUND Sealed Plaintiff commenced this pro se action against state and municipal government entities and officers on October 5, 2005 under a “Jane Doe” pseudonym. Her complaint alleged, inter alia, physical and sexual assault in violation of her civil and constitutional rights, and she moved for a preliminary injunction and an order granting discovery for the purpose of identifying certain “John Doe” defendants. The District Court denied these motions in an Order dated October 24, 2005 and instructed plaintiff, sua sponte, to file an amended complaint that used her real name rather than a “Jane Doe” pseudonym. See Sealed Plaintiff v. Sealed Defendant # 1, No." }, { "docid": "13291639", "title": "", "text": "INGRAHAM, Circuit Judge: James Hepperle pro se appeals the dismissal of his action for want of prosecution and the refusal of the district court to consider his motion for recusal. Appellant also urges the recusal of eight judges of this court who were panel members in prior appeals of this case. This is the third conventional appeal of this diversity action for slander and libel against appellant’s former employer, Southern Methodist University (SMU), and his former attorneys, James A. Johnston and Robert E. Alexander, III. We hold that the district court’s dismissal for want of prosecution was not an abuse of discretion and affirm the judgment. The failure of the district judge to consider the motion for recusal is not reversible error. Appellant’s motion for recusal of members of this court is denied. Appellant pro se filed his complaint on March 3, 1975. Appellees filed various motions for dismissal under Fed.R.Civ.P. 12(b)(l, 6) and a more definite statement under Fed.R.Civ.P. 12(e). Appellant then filed a “Preliminary Answer to Defendant SMU’s Motion for More Definitive Statement, and My Motion for Discovery.” His “Motion for Discovery” was a request for any documents or files pertaining to him in SMU’s possession pursuant to Fed.R.Civ.P. 34. On August 6,1975, appellant filed with supporting affidavit a “Motion for Production of Documents by Defendant Southern Methodist University.” SMU resisted the motion by claiming that the documents were privileged as work product under Fed. R.Civ.P. 26(b)(l, 3). After an untimely interlocutory appeal, Hepperle v. Southern Methodist University, 526 F.2d 1257 (5th Cir. 1976), and a successful appeal from an order of dismissal for failure to state a claim, Hepperle v. Johnston, 544 F.2d 201 (5th Cir. 1976), appellant was noticed for deposition in Dallas but failed to appear on four separate occasions over a five month period. During this time, appellant was residing in Santa Rosa Beach, Florida. He was given advance notice of from five to fifteen days to appear for his depositions. After his first failure to appear, appellant filed a motion on July 25, 1977, for a protective order under Fed.R. Civ.P. 26(c)(l, 2)," }, { "docid": "19607043", "title": "", "text": "at 914 (\"A plaintiff need not show that the 'very action in question has previously been held unlawful,' but he must establish that the unlawfulness was apparent in light of preexisting law.\") (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), and citing Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) ). It was also clearly established in 2013 \"that when a person is subdued and restrained with handcuffs, a 'gratuitous and completely unnecessary act of violence' is unreasonable and violates the Fourth Amendment.\" Blazek v. City of Iowa City, 761 F.3d 920, 925 (8th Cir. 2014) (quoting Henderson, 439 F.3d at 503 ). Accordingly, a reasonable officer would have understood that purposefully dropping Burnikel face-first onto the concrete after he had been subdued and handcuffed would violate clearly established law. We affirm the district court's denial of qualified immunity to Fong and Wessels. Because our resolution of the qualified immunity appeal does not necessarily resolve Burnikel's state law claims against the officers, we dismiss for lack jurisdiction the portion of the appeal concerning those state law claims. See Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1012 (8th Cir. 2003) (en banc). The Honorable John A. Jarvey, Chief Judge, United States District Court for the Southern District of Iowa. The district court also denied in part the City's motion for summary judgment. The City has not appealed, and we do not address the claims against it. To the extent the district court failed to conduct an individualized qualified immunity analysis for each officer, we do so here. See Manning, 862 F.3d at 668 (holding that the district court erred by failing to conduct an individualized analysis for each officer and conducting individual analyses on appeal); Roberts v. City of Omaha, 723 F.3d 966, 974 (8th Cir. 2013) (same). The district court did not address whether Fong's initial use of pepper spray violated clearly established federal law, and Burnikel does not seem to argue on appeal that it did. Viewing the facts in the" }, { "docid": "8921972", "title": "", "text": "Order may now be moot. Thus, the Court will dismiss any appeal from the January 6, 2011 Order as moot. D. The Dismissal of the Rosenberg Bankruptcy is Substantially Affirmed on Appeal On September 27, 2011, the Honorable K. Michael Moore of the United States District Court for the Southern District of Florida issued a memorandum opinion and order affirming in part and reversing in part Judge Cristol’s decision (hereinafter “Rosenberg II ”). Rosenberg II held that “[Rosenberg /] was thorough, fair, and correct as to all but one discrete issue.” The District Court reversed Rosenberg I’s determination that Appellants’ claims were contingent. Rosenberg II expressly declined to reach Rosenberg I’s judicial es-toppel ruling. Appellants timely appealed Rosenberg II to the United States Court of Appeal for the Eleventh Circuit and, on July 6, 2012, the Eleventh Circuit issued a per curiam opinion affirming Rosenberg II in full (hereinafter “Rosenberg III ”). While the appeals to the District Court and Eleventh Circuit were pending, Rosenberg pursued his § 303(i) sanctions claim in a separate adversary proceeding before Judge Cristol in the Florida Bankruptcy Court. Ashland and other defendants filed motions to dismiss the adver sary proceeding. On March 26, 2012, the Florida Bankruptcy Court held that Ash-land was not a petitioning creditor for the purposes of § 303(i) because Rosenberg I had dismissed the first amended involuntary petition, to which Ashland was not a party, and dismissed the motion to strike the second amended involuntary petition as moot. The court therefore dismissed Ashland as a party to the adversary proceeding. The § 303(i) proceeding eventually resulted in a jury verdict in Rosenberg’s favor, but further recitation of that proceeding is not necessary here. E. The Eastern District Bankruptcy Court Considers Rosenberg II and III and Denies Reconsideration of its Collateral Estoppel Ruling Although a motion for reconsideration was filed in the Eastern District Bankruptcy Court in 2010, the motion was not briefed until early 2014. On January 9, 2014, following Rosenberg II and III, the parties agreed to a briefing schedule. On May 2, 2014, the Bankruptcy Court denied reconsideration" }, { "docid": "11176557", "title": "", "text": "faith. The government disclosed Ford’s identity and the nature of his plea agreement more than a week before the trial, and Lofton’s counsel received details about Ford’s testimony immediately after Ford was interviewed. Given that Ford’s testimony was straightforward and that the trial was relatively uncomplicated, there is no reason to believe that the government meant to gain a tactical advantage with this timing. Nor is there any reason to believe that Lofton was prejudiced. His main contention is that additional time would have allowed him to find rebuttal witnesses who would have testified that the incriminating conversation never took place. This assertion is belied, however, by the nature of Ford’s testimony: he stated that Lofton confessed privately when no other inmates were in the vicinity of their conversation. Given these circumstances, it is difficult to envision how Lofton was prejudiced by the government’s failure to offer more prompt disclosure. Accordingly, the district court did not abuse its discretion when it refused to exclude Ford’s testimony. The judgment is affirmed. . The Honorable John A. Jarvey, United States District Judge for the Southern District of Iowa. . We have considered the additional claims raised in Lofton’s pro se supplemental brief and in his recently filed motion to reverse his conviction and dismiss the charges, and we find them to be without merit. See United States v. Janis, 387 F.3d 682, 686 (8th Cir.2004) C'[T]he Fourth Amendment is not violated if the facts available to the officer at the time of the search would warrant a reasonable man in the belief that someone with authority over the premises consented to the search.”) (internal quotations omitted); see also United States v. Robinson, 516 F.3d 716, 717 (8th Cir.2008) (\"A sentence within the Guidelines range is accorded a presumption of substantive reasonableness on appeal.”)." }, { "docid": "22614993", "title": "", "text": "PER CURIAM: John Timson, proceeding pro se, appeals the district court’s dismissal of his pro se qui tarn action under the FCA, 31 U.S.C. §§ 3729-3733. Timson makes two arguments on appeal. First, he argues that the district court erred in dismissing his complaint because, as a pro se relator, he was unable to maintain a qui tam action under the FCA. Second, he argues that the district court abused its discretion in declining to exercise supplemental jurisdiction over his state law claims. For the reasons set forth more fully below, we affirm. As an initial matter, Timson also appeals the stay of his motion for a temporary restraining order; however, the merits of this appeal render that issue moot. See BankWest, Inc. v. Baker, 446 F.3d 1358, 1363 (11th Cir.2006). I. We review de novo the district court’s grant of a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff. Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir.2006). We also review de novo questions of statutory interpretation. Burlison v. McDonald’s Corp., 455 F.3d 1242, 1245 (11th Cir.2006). The FCA permits a private individual, called a qui tam “relator,” to file a civil action against, and recover damages on behalf of the United States from, any, person who: 31 U.S.C. §§ 3729(a)(1)-(2), 3730(b)(1), (c)(3); United States ex rel. Clausen v. Laboratory Corp. of America, Inc., 290 F.3d 1301, 1308 n. 4 (11th Cir.2002). Section 3730(b)(1) of the FCA states that actions brought by private individuals “shall be brought in the name of the Government.” 31 U.S.C. § 3730(b)(1). Regarding the rights of the parties to qui tam actions, the FCA provides, first, that “[i]f the government proceeds with the action, it shall have the primary responsibility for prosecuting the action, and shall not be bound by an act of the person bringing the action[,]” 31 U.S.C. § 3730(c)(1), and second, “[i]f the government elects not to proceed with the action, the person who initiated the" }, { "docid": "14901477", "title": "", "text": "PER CURIAM. Garland Farnsworth and John Johnson appeal pro se from the order of the district court sua sponte dismissing with prejudice their civil rights action for failure to comply with the district court’s orders to cooperate with appellees in preparing a discovery schedule. For reversal, appellants argue (1) the district court abused its discretion in dismissing their action with prejudice; (2) the district court erred in mooting appellants’ motion for a protective order and awarding attorneys’ fees to appel-lees for appellants’ failure to attend scheduled depositions; and (3) the district court’s bias against appellants denied them due process. We affirm. Pro se litigants are not excused from complying with court orders or substantive and procedural law. Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.1984) (per curiam). A district court’s dismissal as a sanction under Federal Rule of Civil Procedure 37 for failure to comply with a discovery order is reviewed under an abuse of discretion standard. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976) (per curiam); Hazen v. Pasley, 768 F.2d 226, 229 (8th Cir.1985). After carefully reviewing the record on appeal, we note that the district court gave appellants meaningful notice of what was expected of them during the course of discovery, initially imposed less stringent sanctions when they failed to cooperate, and warned them that their failure to comply with subsequent court orders would result in dismissal of their action. Accordingly, we hold that dismissal was proper. See Ramsay v. Bailey, 531 F.2d 706, 709 (5th Cir.1976) (per curiam). We further hold that the district court did not abuse its discretion in awarding to appellees attorneys’ fees after appellants failed to attend their properly-noticed depositions. See Fed.R.Civ.P. 37(d); King v. Fidelity Nat. Bank, 712 F.2d 188, 191 (5th Cir.1983) (per curiam), cert. denied, 465 U.S. 1029, 104 S.Ct. 1290, 79 L.Ed.2d 692 (1984). Finally, appellants’ allegations of district court bias and prejudice are wholly unfounded. Accordingly, the district court’s judgment is affirmed. . The Honorable Scott O. Wright, United States District Judge for the" }, { "docid": "21306760", "title": "", "text": "that fourteen-year-olds are considered adults in his native culture. The district court did, however, take note of Fadl’s community standing and concluded that this standing may have facilitated his crimes. As for Fadl’s assertions about the practices of his native culture, Fadl does not explain on appeal, and did not explain to the district court, how Fadl’s cultural background would bear on the district court’s analysis of the factors outlined in § 3553(a). Finally, we note that Fadl’s sentence lies within the presumptively reasonable guidelines range of 360 months. United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.2005) (observing that sentences within the applicable guidelines range are presumptively reasonable); see also Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2462-63, 168 L.Ed.2d 203 (2007). The judgment and the sentence are affirmed. . The Honorable Linda R. Reade, United States District Judge for the Northern District of Iowa, adopting the reports and recommendations of the Honorable John A. Jarvey, then United States Magistrate Judge for the Northern District of Iowa, now United States District Judge for the Southern District of Iowa. . The 2004 version of the Guidelines was applied in calculating the applicable Guidelines range. . Schmeilski cites an earlier, and differently numbered, version of § 2G2.1(d)(1). . There are other considerations discussed by Fadl on appeal, including Fadl's allegation that he had destroyed the images in his computer once he discovered that they were illegal. We do not believe that the district court was obliged to comment on every single factual consideration that was adduced in support of a lower sentence. Cf. Gnavi, 474 F.3d at 538 (noting that the district court need not \"categorically rehearse” every § 3553(a) factor as long as it is clear that they were considered (quotation omitted)). The district court made it clear that it had considered the testimony at the hearing and that it considered the § 3553(a) factors. We believe that this was sufficient. . We have considered the arguments set forth in Fadl's pro se supplemental brief and conclude that they are without merit." }, { "docid": "22701703", "title": "", "text": "PER CURIAM: Robert Grant, an inmate proceeding pro se and in forma pauperis, appeals the district court’s dismissal, under 28 U.S.C. § 1915(d) (1988), of his civil rights suit against several prison officials. We dismiss for want of prosecution. Grant filed an excessive force claim under 42 U.S.C. § 1983 (1988) against several prison officials, alleging that they had violated his First and Eighth Amendment rights. He alleged that a prison official had struck him repeatedly with a metal bar and that two other officials had watched without intervening. Grant had objected to the condition of a meal tray he had received, and he claims that the prison official had physically assaulted and verbally abused him when he motioned to summon a supervisor. At the time of this incident, Grant was assigned to a segregation cell for having assaulted a prison official. After conducting a Spears hearing, the district court dismissed Grant’s claims as frivolous. Grant filed a timely appeal. Grant’s appellate brief does little more than restate the relevant factual events leading to his original complaint. Accordingly, the prison officials argue that we should dismiss Grant’s appeal for failure to comply with Rule 28(a) of the Federal Rules of Appellate Procedure. Although we liberally construe briefs of pro se litigants and apply less stringent standards to parties proceeding pro se than to parties represented by counsel, pro se parties must still brief the issues and reasonably comply with the standards of Rule 28. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) (“[P]ro se litigants, like all other parties, must abide by the Federal Rules of Appellate. Procedure.”); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993) (“ ‘[Arguments must: be briefed to be preserved.’ ” (quoting Price, 846 F.2d at 1028)). The prison officials argue that Grant has abandoned his appeal by failing to brief any issues. This Court has considered a pro se appellant’s brief despite its technical noncompliance with the Rules of Civil Procedure when it at least argued some error on the part of the district court. See, e.g., Wilkes, 20 F.3d at" }, { "docid": "22217943", "title": "", "text": "PER CURIAM: Plaintiff Clarence R. Valentine appeals from a judgment of the United States District Court for the Southern District of New York, John S. Martin, Jr., Judge, dismissing his action on account of Valentine’s failure to comply with an order of the court. On appeal, Valentine contends that use of the harsh remedy of dismissal was inappropriate. We disagree and therefore affirm the district court’s order of dismissal. Appearing pro se in the district court, Valentine commenced the present action in 1991 against defendant Museum of Modern Art (“MOMA”), alleging termination of his employment on the basis of his race, in violation of 42 U.S.C. § 1981 (1988) and 42 U.S.C. § 2000e-5 (1988). During the course of the litigation, MOMA sought discovery from Val entine, with mixed success. Though he appeared for two deposition sessions, he was disruptive on those occasions; on other scheduled occasions he failed to appear. Valentine was repeatedly warned of sanctions that could be imposed if he refused to comply with discovery orders. For example, in September 1992, Valentine indicated that the district judge had previously advised him that if he refused to be deposed, his action would be dismissed. In a telephone conference with Magistrate Judge Leonard Berni-kow during a session of his deposition on that date, Valentine asked, “Why is it that the judge told me that if I do not give a deposition, he will dismiss the case?” (Deposition Transcript, September 15, 1992, at 41.) On November 4, 1992, Magistrate Judge Bernikow again informed Valentine that if he chose not to answer questions on deposition, “there are certain sanctions under Rule 37 ... of the Federal Rules of Civil Proce-dure_” (Transcript of Pretrial Conference, November 4, 1992 (“November 1992 Tr.”), at 6.) Magistrate Judge Bernikow read and explained portions of that Rule to Valentine, stating that Rule 37(c) provides that the court may enter an order striking out pleadings or parts thereof or staying further proceedings until the order is obeyed or dismissing the action or proceeding or any part thereof or rendering a judgment by default against the disobedient party." }, { "docid": "19607044", "title": "", "text": "we dismiss for lack jurisdiction the portion of the appeal concerning those state law claims. See Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1012 (8th Cir. 2003) (en banc). The Honorable John A. Jarvey, Chief Judge, United States District Court for the Southern District of Iowa. The district court also denied in part the City's motion for summary judgment. The City has not appealed, and we do not address the claims against it. To the extent the district court failed to conduct an individualized qualified immunity analysis for each officer, we do so here. See Manning, 862 F.3d at 668 (holding that the district court erred by failing to conduct an individualized analysis for each officer and conducting individual analyses on appeal); Roberts v. City of Omaha, 723 F.3d 966, 974 (8th Cir. 2013) (same). The district court did not address whether Fong's initial use of pepper spray violated clearly established federal law, and Burnikel does not seem to argue on appeal that it did. Viewing the facts in the light most favorable to Burnikel, the situation confronting Fong was that of a man yelling at a police officer during a late-night arrest near a line of bar patrons, many of whom were intoxicated. Whether every reasonable officer would have understood that the initial discrete use of force-Fong's deployment of pepper spray-would violate Burnikel's Fourth Amendment right is a question that we do not address. Suffice it to say that the use of pepper spray and the effect it had on Burnikel are circumstances relevant to the reasonableness of the officers' subsequent use of force. Fong and Wessels argue that they were entitled to qualified immunity on the § 1983 false arrest claim, but in our view, Burnikel has not alleged any such federal claim. His complaint alleges the elements of false arrest under Iowa law: that Burnikel \"was detained or restrained against his will\" by Fong and Wessels and that the detention or restraint was unlawful. Compl. ¶¶ 84, 87, 105, 107; see Kraft v. City of Bettendorf, 359 N.W.2d 466, 469 (Iowa 1984)." }, { "docid": "14005189", "title": "", "text": "his notice of appeal. However, even if we were to count Doe and Heath II (which we do not), Millhouse would still only have two strikes, i.e., Bledsoe and Doe. Because the District Court explicitly and correctly concluded that Millhouse’s complaint revealed an immunity defense on its face and dismissed with prejudice for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), Doe qualifies as a strike. But we also conclude that a dismissal without prejudice for failure to state a claim does not rise to the level of a strike. Accordingly, Heath II does not qualify as a strike. Turning to the merits of the underlying decision by the District Court, we will vacate the District Court’s, order and remand for further proceedings. I. On August 22, 2014, Millhouse filed a pro se complaint against several prison employees, alleging constitutional violations under the Bivens doctrine. In a May 5, 2015 order, the District Court denied Millhouse’s motion for. leave to proceed IFP, dismissed his complaint under 28 U.S.C. § 1915(g) without prejudice to refiling if Millhouse submits the full filing fee, and denied his motion for leave to amend (as well as his motion for a preliminary injunction and for leave to add exhibits). In its accompanying memorandum, the District Court identified five,.strikes pursuant to § 1915(g) and found that Millhouse failed to establish that he was under imminent danger of serious physical injury. Acting pro se, Millhouse filed a notice of appeal on May 19, 2015. On june 15, 2015, he moved to proceed with this appeal IFP. On November 6, 2015, we stayed the instant case pending Millhouse v. Sage, C.A. No. 14-3845, another appeal filed by Mill-house. On February 11, 2016, the Court issued its opinion in Sage. In this disposition, we. determined that only one of the putative strikes- cited by the District Court actually qualifies as a strike: Milhouse v. Bledsoe, No. 10-cv-0053, 2010 WL 3940853 (M.D. Pa. Oct. 6, 2010). See Millhouse v. Sage, 639 Fed.Appx. 792, 792-95 (3d Cir. 2016) (per curiam). While this" }, { "docid": "18232109", "title": "", "text": "experienced lawyer representing Hayat’s father, Umer, in their joint trial. Hayat also argued that his trial counsel was constitutionally ineffective because, among other things, she did not take advantage of procedures that would have allowed her to depose potentially exculpatory witnesses in Pakistan who were unavailable for trial, and she failed to preserve objections to several of the district court’s evidentiary rulings. The district court dismissed Hayat’s § 2255 motion without prejudice because his criminal appeal was pending before this court. Hayat now asks us to review the district court’s dismissal order. Hayat did not timely file a notice of appeal of the district court’s dismissal order, which postdated by several weeks Hayat’s notice of appeal in his criminal case. See Fed. R.App. P. 4(a); see also Rule 11, Rules Governing Section 2255 Proceedings for the United States District Courts. We therefore lack jurisdiction to review the district court’s dismissal of Hayat’s § 2255 motion, see United, States v. Sadler, 480 F.3d 932, 937 (9th Cir.2007) (“Rule 4(a) ... is both mandatory and jurisdictional.”). This holding is, of course, without prejudice to our authority to review the district court’s determinations on any later, properly filed initial § 2255 motion encompassing the claims Hayat sought to raise in the motion dismissed without prejudice, and expresses no view as to the merits of any of those contentions. CONCLUSION We affirm Hayat’s convictions. We also grant the government’s motion to dismiss the appeal of the order dismissing without prejudice Hayat’s motion to vacate his convictions under 28 U.S.C. § 2255. We deny the government’s motion to strike portions of the opening brief that cite to materials outside the record as moot. AFFIRMED. . At Hayat’s trial, government witnesses conceded that it was highly unlikely that the individuals identified by Khan had been in Lodi in the late 1990s. . The FBI paid Khan between $3,000 and $4,500 per month plus expenses. . Hayat's father, Umer Hayat, was indicted on two counts of making false statements to the FBI — namely denying that he had firsthand knowledge of terrorist training camps in Pakistan and" }, { "docid": "22505632", "title": "", "text": "analog ( 21 U.S.C. § 841 ) covers only controlled and counterfeit substances. And, indeed, we have held that convictions for simulated controlled substances are not predicate offenses. United States v. Brown , 598 F.3d 1013, 1018 (8th Cir. 2010). But these alternatives are elements, not means. The structure of the statute reveals that it is divisible because different drug types and quantities carry different punishments. See Mathis , 136 S.Ct. at 2256. The nature and quantity of the substance at issue are therefore essential to the crime's legal definition; they are not mere \"brute facts.\" Reference to Iowa state court cases confirms that the drug at issue is an element given in jury instructions, showing that it must be proven to sustain a conviction. Therefore, we apply the modified categorical approach, revealing that Ford's convictions are serious drug offenses under the ACCA. * * * For the foregoing reasons, we affirm the trial court's denial of Ford's motion to suppress evidence and its sentencing of Ford as an Armed Career Criminal. The Honorable John A. Jarvey, Chief United States District Judge for the Southern District of Iowa. Although we exercised our discretion to grant Ford leave to file a pro se supplemental brief, we denied him leave to file a reply. Ford subsequently filed a motion for reconsideration of the latter decision, which we now deny. Compare id. (applying plain error review when defendant merely failed to object at sentencing to adequacy of trial court's explanation) with United States v. Evenson , 864 F.3d 981, 983 (8th Cir. 2017) (finding waiver when defendant raised and then withdrew objection at sentencing); United States v. Harrison , 393 F.3d 805, 808 (8th Cir. 2005) (finding waiver when judge identified an issue for counsel, who did not object); United States v. Thompson , 289 F.3d 524, 526 (8th Cir. 2002) (finding waiver when counsel withdrew all eight of his objections); United States v. Murphy , 248 F.3d 777, 779 (8th Cir. 2001) (finding waiver when counsel asked for a sentence at low end of the sentencing guidelines rather than a departure). Ford" } ]

[ { "docid": "6036804", "title": "", "text": "Pleading and practice; interlocutory review; leave to except out of time to trial judge’s order. — On May 9,1980 the court entered the following order: Before Davis, Judge, Presiding, Kashiwa and Bennett, Judges. Defendant has moved, pursuant to Rule 53(c)(2), for an interlocutory review of the trial judge’s order of April 10, 1980, which denied defendant’s motion of April 9, 1980, for leave to file out of time, and on that day, its requested findings of fact, brief, and response to plaintiffs motion for certain changes in the trial transcript, and to file objections to plaintiffs proposed findings of fact. The trial judge’s order stated that it was without prejudice to the right of defendant to except to the trial judge’s findings of fact, opinion, and recommended conclusion of law. By means of two earlier motions, defendant requested and was granted two time extensions totaling 120 days for filing its papers. On March 18, 1980, defendant filed a third motion for a time extension of an additional period of 45 days. March 18 was the date on which its submissions were due. The motion was denied by the trial judge, as noted above. On April 14, 1980, he filed his decision, holding in plaintiffs favor. Pleading that defendant’s delay was by reason of other court commitments and change of counsel and that defendant would be irreparably prejudiced by the trial judge’s disallowance of its motion for leave to file out of time, defendant points to Rule 134(g)(2) and (3) which provides that where a party has not requested a particular finding of fact the court may refuse to consider an exception to the trial judge’s decision for failure to make such a finding and that, unless a party has objected to a particular requested finding, the court may refuse to consider an exception to the inclusion of such finding in the trial judge’s decision. We have weighed the contesting views of the parties in this matter and conclude that the administration of justice will best be served in the circumstances by the court’s exercise of its discretion to permit defendant" } ]

[ { "docid": "23317256", "title": "", "text": "an employer may be wrong about its employee’s performance, or be too hard on its employee. Rather, the only question is whether the employer’s proffered reason was pretextual, meaning that it was a lie.” Ineichen v. Ameritech, 410 F.3d 956, 961 (7th Cir.2005); Ptasznik, 464 F.3d at 696 (pretext inquiry must focus on whether the employer’s stated reason is honest, not well-reasoned, wise or accurate). There is nothing in the record to support a finding that Caterpillar’s stated reasons for suspending and terminating Gates were fabrications. Absent such evidence, summary judgment is wholly appropriate. Giannopoulos, 109 F.3d at 411. For the foregoing reasons, the district court’s judgment is Affirmed. . Gates does not dispute that she herself made the calls or visited those websites. . During the June 3 meeting, Caterpillar Security inspected Gates’ bag but found no I-Pass card. . As the district court’s opinion was issued before Sylvester and Treadwell, it did not have the benefit of our most recent clarifications of this issue. . Gates has not helped her cause, or the defendants theirs, with citations throughout their briefs only to the Statement of Facts or various paragraphs in the depositions, respectively. This Court's task to thoroughly assess the claims has been rendered unnecessarily burdensome, requiring searching through the entire record for particular, underlying information. “The Federal Rules of Appellate Procedure require that, '[n]o fact shall be stated in the statement of facts unless it is supported by a reference to the page or pages of the record or appendix where the fact appears.’ Fed. R.App. P. 28(a)(7). See also Fed. R.App. P. 28(e); Circuit Rule 28(c); Corley v. Rosewood Care Center, Inc. of Peoria, 388 F.3d 990, 1001 (7th Cir.2004) (where the plaintiff has failed to cite the record, ‘we will not root through the hundreds of documents and thousands of pages that make up the record here to make his case for him.’); U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) ('Judges are not like pigs, hunting for truffles buried in’ the record.).” Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 754 n. 1" }, { "docid": "17803919", "title": "", "text": "PeR Curiam: This contract case was referred to Trial Commissioner William E. Day, pursuant to Rule 57(a), for findings of fact and a recommendation for a conclusion of law. The commissioner has filed his report containing an opinion, proposed findings of fact, and a recommended conclusion of law. He would hold that plaintiff is not entitled to recover and therefore its petition should be dismissed. The defendant accepts the commissioner’s opinion and proposed legal conclusion, but made objections to certain of his findings. The plaintiff accepts the commissioner’s findings but excepts to his recommended conclusion of law. Briefs have been filed and there has been oral argument. The court agrees with the opinion, findings, and recommended conclusion of the trial commissioner and adopts them, with modifications, together with this opinion, as the basis for its judgment in this case. However, plaintiff has urged before the court a legal theory not dealt with by the commissioner in his opinion. In short, the plaintiff argues that the United States should be responsible for the cost of repairing damage caused by the District of Columbia because the District was the agent of the United States acting under the Federal Government’s direction when the District rerouted the water main. This contention must be rejected. In the first place, the parties stipulated at the pretrial conference that “[t]he cave-in which occurred on the night of September 12-13, 1955, was not the result of any fault on the part of the plaintiff or the defendant.” Since what plaintiff is seeking to do before this court is to impute fault to the defendant through the actions of its alleged agent, the District of Columbia, it would seem that plaintiff is precluded by the stipulation from even raising this question of agency. A stipulation is a judicial admission binding on the parties making it absent special considerations. Bruno New York Industries Corp. v. United States, 169 Ct. Cl. 999, 1007, 342 F. 2d 75, 79 (1965); Garner v. United States, 161 Ct. Cl. 73, 75 (1963); McNamara v. Miller, 269 F. 2d 511, 515 (D.C. Cir. 1959); 9" }, { "docid": "6177378", "title": "", "text": "appellees Curtis J. Bernhardt, Carl J. Bernhardt, Michael F. McCarthy and Harold T. Okahara on the dismissed mail fraud counts, numbers two ■ through 30. Accordingly, the judgment dismissing counts two through 30 of the superseding indictment is REVERSED as to all the above appellees and the case is REMANDED for further proceedings consistent with this opinion. REVERSED AND REMANDED. . Section 636(b)(1)(B) provides in part: a judge may * * * designate a magistrate to conduct hearings * * * and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A) * * *. 28 U.S.C. § 636(b)(1)(B) (1982). . Local Rule 404-2 provides that Any party may object to a magistrate’s proposed order, findings, or recommendations * * * within 10 days after being served with a copy thereof. Such party shall file * * * written objections which shall specifically identify the portions of the proposed order, findings, or recommendations to which objection is made and the basis for such objections. Any party may respond to another party's objections within 10 days after being served with a copy thereof. A United States District Judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objec tion is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The United States District Judge, however, will not conduct a new hearing unless required by law, and may consider the record developed before the magistrate, making his own determination on the basis of that record. The United States District Judge may in his discretion receive further evidence, recall witnesses or recommit the matter to the magistrate with instructions. Local Rule 404-2 of the Rules of the United States District Court for the District of Hawaii. . Section 1341, the mail fraud statute, provides in pertinent part: Whoever, having devised or intending to devise any scheme or artifice to defraud, or" }, { "docid": "22795384", "title": "", "text": "and that the proposed conclusions of law are consistent with current case law.” Accordingly, the district court adopted the magistrate’s recommendation and denied the motion to suppress. The government’s principal response to Schronce’s fourth amendment argument is that the defendant is barred from challenging the magistrate’s findings of fact and recommendations as approved by the district court, because he failed to file written objections within the ten-day period allotted by both the magistrate’s written recommendation and the relevant statute, 28 U.S.C. § 636(b)(1). Section 636(b)(1) of the Federal Magistrates Act grants the district court authority to refer pre-trial matters, such as a motion to suppress, to a federal magistrate: (A) [A] judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subpara-graph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law. (B) [A] judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact, and recommendations for the disposition, by a judge of the court, of any motion excepted in subpara-graph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. (C) [T]he magistrate shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties. Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo" }, { "docid": "21485886", "title": "", "text": "If an action must be dismissed for failure to prosecute for five years, in another suit where the period of failure to prosecute is less than five years, the district court would not be able to dismiss the suit. Finally, we have considered that it has been six years since this Court handed down its first decision in the case. It is fair to assume that the holding is well known to members of the Louisiana bar. A similar case is not likely to recur — we hope. III. Judge Edwin F. Hunter, Jr., the district judge, set forth his findings of fact and conclusions of law in a well considered opinion which appears in the record. This Court has carefully reviewed that opinion, the record, and all of the briefs. The Court holds that the trial court committed no reversible error and that the judgment below was not clearly erroneous. Substantial evidence supports the trial court’s findings of fact and conclusions of law. . Rule 41(b), in pertinent part, reads: “Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. * * * Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this title, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.” . Counsel for the defendant explained in his brief in the Court below (in the earlier proceedings) that the reason “the plaintiff did not fix this case for trial before his compensation case became final in the State Court on June 2, 1952, was because he could not reach an agreement with intervenor (plaintiff’s workmen’s compensation carrier) as to its subrogation claim by which agreement intervenor would make some concession to plaintiff. * * * Such an agreement, however, was reached on November 30, 1954.” . The “Supplemental Answer” asserted: “That the alleged cause of action" }, { "docid": "22412116", "title": "", "text": "control horizontal movements through the operation of the same control systems—respectively, the collective and cyclic pitch control system. I Stanley Patent No. 2,302,068.—Neither party has excepted to the trial commissioner’s finding of fact on this patent and its single claim; therefore, it is adopted as part of this opinion. The ’068 patent is concerned with rotor blade construction. Since they have routed and not apertured rotor blades, the accused structures, the Vertol HUP-1 and the Vertol H-21B helicopters, do not infringe the one claim of this patent. II Court of Claims Rule 58(c) requires that “* * * [appropriate references shall be made at the end of each exception to the parts of the record relied upon in support thereof.” Otherwise, in determining the merit of the exceptions, the court would be required to go through the entire record without benefit of a Baedeker. Such a task relegates the court to making the parties’ case rather than deciding it. Thus it has been strict in enforcing Rule 58(c). For example, a party has not been allowed to set forth only its own extended narrative version of the facts with an appendix of its own proposed findings of fact. Hunt and Willett, Inc. v. United States, 168 Ct. Cl. 256, 351 F. 2d 980 (1964). See, also, Societe Anonyme des Ateliers Brillie Freres v. United States, 160 Ct. Cl. 192 (1963); Schmoll v. United States, 105 Ct. Cl. 415, 63 F. Supp. 753, cert. denied 329 U.S. 724 (1946). For eight of the patents and their claims, defendant has excepted .to the trial commissioner’s opinion by only listing the numbers of the findings of fact with which it finds fault. No briefs have been submitted in support of these exceptions. No references to the trial record or exhibits have been made to underpin the allegation that the trial commissioner erred in his findings. This method of excepting is a hollow gesture and has the same effect that failure to except has. See, Harrington v. United States, 161 Ct. Cl. 432 (1963); Batchelor v. United States, 169 Ct. Cl. 180, cert. denied" }, { "docid": "21311782", "title": "", "text": "case to the trial judge as if this court were sitting as a super correction board with authority to correct what are merely alleged inaccuracies in a challenged OER. We read the trial judge’s opinion as adopting that view. The trial judge said that: A military officer is legally entitled to be considered by a selection board for promotion on the basis of a record that fairly portrays the career of the officer in the military service. In this he was correct. The law provides that appointments to higher grades are to be made on a \"fair and equitable basis,” 10 U.S.C. §§ 3442(c), 8442(c) (1976). However, this laudable, legal standard does not automatically convert every factual error to legal error. The plaintiffs claim in this case relies upon proof that the challenged OER was materially in error so as to warrant judicial relief. But, as we have shown, reasonable minds can differ on the evidence here. Where that is so, we can go no further. We have analyzed the case under the proper standards for granting relief for factual error and conclude that the evidence was insufficient to overturn the presumptions which support the OER in this case. Therefore, the petition is dismissed. The court rejects the trial judge’s findings numbered 43(c) through 43(i), 44,48(b) through 48(k), and his conclusion of law. The court’s task in review of the record has been made unnecessarily difficult by defendant’s failure to comply with our Rule 143(c) which requires that, \"At the end of each exception to findings of fact, appropriate references shall be made to the parts of the record relied upon in support thereof.” When the trial judge drafted his recommended opinion, he had the benefit of the plaintiff’s 276-page proposed findings of fact and brief. However, he did not have before him any proposed findings, brief, or response from the defendant. See the court’s previous order in this case. Grieg v. United States, 224 Ct. Cl. 617 (1980). Thus, the one-sidedness of the record before the trial judge may have contributed to the outcome below." }, { "docid": "8669147", "title": "", "text": "not secure for about three months. It is also argued that the judge did not find Wain guilty of an intent to violate the regulation because he said when referring to Wain’s failure to report: \"I was a little bit sure it was rather deliberate at one time, I am not too sure that it was deliberate now. I think he knew he should have reported, and he did not, and it may be he thought he would get back to work any day.” This statement and some statements by the judge that intent had nothing to do with the case were ad interim utterances during the trial which did not, in our opinion, afreet the finality of his general finding'. Rule 23(c) oí the Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687, is as follows: “(c) Trial without a Jury. In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially.” No request for special findings was submitted. On March 29, 1946 the judge had found the defendant “guilty as charged.” On the defendant’s motion he reopened the case to receive further testimony. After hearing argument on April 30, 1946 he received briefs and on May 24, 1946 rendered the following decision and general finding. “I find the defendant guilty, and in view of what lias been said through the trial I think I should clear something up. It is my opinion that this defendant did not comply with the statute which required him, after ten days, to notify the draft boat'd of the change in status in his employment, and that he did not notify the Draft Board until some two and one-half months later of this change. He says he did not think he had to report that to the Draft Board. I believe that an intention not to comply with the statutory provisions can be spelled out of Ms failure to comply with the statute, especially in view of the time which elapsed between the ten-day period, which was the time" }, { "docid": "21844962", "title": "", "text": "is a broad range of inquiry which our ruling does not circumscribe. It means only that most of the FBI files that he requests will not be turned over to him. Congress, however, did not intend to make all records available to the inquisitive public. It recognized that there were circumstances in which it would be clearly inappropriate for agencies to release certain documents to the public. Thus, in cases such as these, it provided for in camera de novo review by the district court. And, in his brief, Lame acknowledges that “[he] recognizes the need for in camera review and, on rare occasions, the filing of sealed findings of fact.” Brief for Appellant at 14-15. Furthermore, we have performed our appellate function and we have made a plenary review of the district court’s decision on the legal issues. On the basis of our thorough review of the sealed findings of fact, the actual documents and the mat ters of public record, we conclude that the trial judge correctly applied the controlling precepts of law, complied with our prior order and we hold that his in camera findings are not clearly erroneous. Ingle, 698 F.2d at 267-268; see also Doyle v. Federal Bureau of Investigation, 722 F.2d 554, 555 (9th Cir.1983). Accordingly, we will affirm the judgment of the court below. . The Freedom of Information Act mandates a policy of broad disclosure of government documents when production is properly requested. In pertinent part, section 552(a)(3) provides: ... each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person. When a request is made, an agency may withhold a document, or portions thereof, only if the document falls within one of nine statutory exemptions to the disclosure requirements contained in section 552(b). . Section 552(b)(7) exempts investigatory records compiled for law enforcement purposes where production of such records would, inter alia, (C) constitute an unwarranted invasion of personal" }, { "docid": "22774726", "title": "", "text": "objections were filed at any time. Prior to the start of trial on May 20, the court inquired if there were any motions. Defendant’s attorney then stated: “I move the Court to adopt the Magistrate’s finding.” The court stated: “There has been no objection filed to it. Yes, the Court adopts that.” The parties see the issue differently. Appellant’s statement of issues is: “The lower court erred in denying appellant’s Motion to Suppress.” The government states the issue thus: “Whether, pursuant to the record, counsel for defendant has preserved his right to predicate error on the trial judge’s ruling adopting the Magistrate’s Report and Recommendation dated May 14, 1981.” Appellant’s brief does not discuss at all the question of appealability; it assumes that, because the court adopted the magistrate’s report and recommendation, it can challenge the motion to suppress. This was an incorrect assumption. The Federal Magistrate’s Act, 28 U.S.C. § 631 et seq. reads in pertinent part: parties. Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. (B) a judge may also designate a magistrate to conduct hearings, including evi-dentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. (C) the magistrate shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all Id. § 636(b)(1)(B), (C). Park" }, { "docid": "23518599", "title": "", "text": "findings, stated either in the court’s opinion or separately, which are sufficient to indicate the factual basis for the ultimate conclusion.” Kelley v. Everglades Drainage Dist., 319 U.S. 415, 422, 63 S.Ct. 1141, 1145, 87 L.Ed. 1485 (1943); see, e.g., Denofre v. Transp. Ins. Rating Bureau, 532 F.2d 43, 45 (7th Cir. 1976). Otherwise the reviewing court has no way of knowing what the facts of the case are. Certainly we cannot ourselves resolve the pervasive issues of credibility in the record of this case. Although in many bench trials it is feasible and desirable for the judge to decide the case at the conclusion of trial, especially if there is a definitive pretrial order and the judge has kept careful notes throughout the trial, in the present case — we can see with the benefit of hindsight — an oral opinion was not an effective method of compliance with Rule 52(a). Probably the judge should have allowed the parties to submit briefs and proposed findings of fact after the close of trial and then should have issued written findings, whether numbered consecutively or narrated in an opinion, clearly resolving each genuine issue of material fact. We could remand the case to the same judge who tried it, with directions to comply with Rule 52(a) and reexamine the case under the correct legal standards; but the trial ended a year ago and the record may well be stale in the judge’s mind. We think it best to remand for a new trial, which under Circuit Rule 18 will be conducted by a different judge. Two issues remain to be considered. First, Rucker joined with his Title VII claim, in which he was asking that the Board be ordered to reinstate him, claims for damages under 42 U.S.C. §§ 1981, 1983, and 1985. Of the damage claims, the district judge discussed only the one under section 1983, which he dismissed on the ground that the plaintiff’s burden of proof is heavier under that statute than under Title VII. Whether it is heavier or not, if this were the only justification for" }, { "docid": "18915960", "title": "", "text": "the conduct of Not-for-Profit corporations, including what kind of corporate formalities must be kept by such corporations; 3. Judge Chrein committed legal error by relying on only one of the ten factors enumerated in Passalacqua, rather than conducting a balancing test of all of the enumerated Passalacqua factors. 4. Judge Chrein erred in concluding that the willingness of Wetterer to forego a salary for his work at Mi Casa strongly suggests that he was using corporate funds for his own purpose. 5. Judge Chrein failed to consider testimony indicating that the Asociación kept certain corporate formalities. In addition to the above, the Asociación objects to the findings and conclusions regarding each of the four transactions reviewed by Judge Chrein. These objections will be discussed below, upon review each of the transactions. DISCUSSION 1. Applicable Standard of Review. According to the statutory provisions governing the powers of a United States Magistrate Judge, a district judge may designate a magistrate judge to hear and determine any pre-trial matter pending before the court, except certain dispositive matters such as motions to dismiss or for summary judgment. See 28 U.S.C. § 636(b)(1)(A). In cases involving these latter-kind matters that are excepted from a hearing and determination by the magistrate judge, the district court may designate the magistrate judge to conduct an evidentiary hearing on the matter, and to submit proposed findings of fact and recommendations to the district court. 28 U.S.C. § 636(b)(1)(B). The instant reference to Judge Chrein concerns a dispositive issue, because a finding that the Asociación is Wet-terer’s alter ego can result in dismissing the Asociacion’s claim. The statute requires that with respect to proposed findings and recommendations made under section 636(b)(1)(B), the district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made,” and that the court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” See 28 U.S.C. § 636(b)(1)(C). In order to make a sufficient de novo determination under the statute, the district court must" }, { "docid": "2144899", "title": "", "text": "petition can only be determined by application of the Edwards standard to the facts of this case, a task required of the district judge through the “de novo” standard of review. In fact, had the district judge reviewed Aldridge’s original objections to the magistrate’s report and recommendation under the more careful scrutiny of the applicable “de novo” standard, he undoubtedly would have saved both courts this unnecessary appeal and subsequent remand. In summary, we hold that by failing to review the magistrate’s report under the appropriate “de novo” standard, the district judge has failed to fulfill his duties as an Article III judge. Although Congress did intend the magistrates to lend assistance to the overburdened district courts when appropriate, the carefully drafted statutory standards for review of the magistrate’s findings are meant to insure that the district courts will not abdicate their responsibility. Due to the great importance of adherence to the express provisions of section 636(b), we VACATE the decision of the district court in all three of these cases and REMAND to the district court for a “de novo” review of the record for at least those objections set forth by the parties and for further proceedings consistent herewith. . The relevant portions of the amended section 636(b) are as follows: (b)(1) Notwithstanding any provision of law to the contrary— ****** (B) a judge may ... designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subpara-graph (a), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. (C) the magistrate shall file his proposed findings and recommendations under subpar-agraph (B) with the court and a copy shall forthwith be mailed to all parties. Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make" }, { "docid": "22608475", "title": "", "text": "was irrelevant to the issue of self-defense, and that its prejudicial effect would outweigh its probative value. Having exhausted state remedies, petitioner sought habeas corpus relief in the United States District Court for the Northern District of Ohio. The petition raised, inter alia, the question whether petitioner was denied a fair trial by the trial court’s refusal to admit testimony concerning the Battered Wife Syndrome. Petitioner filed a memorandum of law in support of the petition. The District Judge, acting pursuant to 28 U. S. C. § 636(b)(1)(B), referred the case, including petitioner’s memorandum of law, to a Magistrate. The Magistrate did not hold a hearing. On May 11, 1982, the Magistrate issued his report, containing proposed findings of fact and conclusions of law and recom mending that the writ be denied. On the issue of the Battered Wife Syndrome testimony, the Magistrate concluded that the trial court’s failure to admit the proffered testimony had not impaired the fundamental fairness of the trial, and therefore was not an adequate ground for habeas corpus relief. The last page of the Magistrate’s report contained the prominent legend: “ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Courts within ten (10) days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal the District Court’s order. See: United States v. Walters, 638 F. 2d 947 (6th Cir. 1981).” Despite this clear notice, petitioner failed to file objections at any time. She sought and received an extension of time to file objections through June 15, 1982, on the grounds that “this case entails many substantive issues and counsel needs more time to write his brief.” However, petitioner made no further submissions on the merits to the District Court. Notwithstanding petitioner’s failure to file objections, the District Judge sua sponte “review[ed] . . . the entire record de novo,” App. 59, and dismissed the petition on the merits. Petitioner sought and was granted leave to appeal. Petitioner’s brief on appeal raised only the issue of the Battered Wife Syndrome testimony. The brief" }, { "docid": "22648974", "title": "", "text": "magistrate judge’s inspection, they are not in the record. But, as noted, USAA submitted deposition excerpts with its reply to Douglass’ response to the summary judgment motion. . The record does not contain a ruling on Douglass' continuance request. . 28 U.S.C. § 636(b)(1) provides: (b)(1) Notwithstanding any provision of law to the contrary— (A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for in-junctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law. (B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. (C) the magistrate shall file his proposed findings and recommendations under subpara-graph (B) with the court and a copy shall forthwith be mailed to all parties. Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate" }, { "docid": "18330025", "title": "", "text": "Lloyd, Carr. Defendant Gage contests the Court’s reliance on matters held proven in Kelley v. Carr, 442 F.Supp. 346 (W.D.Mich.1977), to determine whether the requirements of Rules 23(a)(2) and 23(b)(3) have been met. As the defendant points out, Rule 43(e) requires the Court to rely on facts already in the record, affidavits, or depositions presented by the parties when it considers a motion such as plaintiff’s. Rule 43(e) and Fed.R.Evid. 802, which precludes reliance upon hearsay evidence, prohibit this Court from relying on facts proven in Kelley to measure the commonality of questions of law or fact on which the proposed plaintiff class bases its motion for certification. Consequently, the Court finds the record in this case lacks sufficient evidence to convince the Court that the majority of the representations on which the proposed plaintiff class relies for certification were uniform in content so as to present common questions of fact for trial. This deficiency in plaintiff’s case, as well as a failure by plaintiff to establish common questions of law under various state common law theories, compels the Court to DENY plaintiff’s common law fraud claims at this time. Noting the Fifth Circuit’s preference for allowing a plaintiff the opportunity to demonstrate common questions of law or fact before finally deciding whether certification is appropriate, Grainger v. State Security Life Insurance Co., 547 F.2d 303, 307 (5th Cir.1977), the Court will allow the plaintiff to renew his motion for certification only with respect to his common law claims within forty-five (45) days of the filing of this order if he supplements the renewal thereof with the result of discovery showing uniform misrepresentations by Lloyd, Carr, the law applicable to the alleged 4700 fraudulent transactions, and the commonality of that law. The defendants shall have fifteen (15) days following the filing of any renewed motion to respond with opposing discovery documents. Each party may file one brief in support of his position which may not exceed ten (10) pages in length. The Court now turns to that portion of plaintiff’s complaint based on the CFTC Act. As noted earlier, the" }, { "docid": "22872706", "title": "", "text": "Souran — a brief parenthetical quoting language from a Vanderbilt Law Review student note. — plainly was not essential to the Court's holding; it was dicta. In fact, the Court in Souran reversed the district court's imposition of Rule 11 sanctions based on a finding that the attorney's conduct was objectively reasonable. . (b)(1) Notwithstanding any provision of law to the contrary— (A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law. (B) a judge may also designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. (C) the magistrate judge shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties. Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The" }, { "docid": "23004908", "title": "", "text": "Law” that the ASBCA decision was “arbitrary, capricious, and not supported by substantial evidence.” Since the plaintiff failed to point out specifically the errors committed by the ASBCA, defendant urged that this was a fatal defect (citing Volentine and Littleton v. United States, 136 Ct. Cl. 638, 145 F. Supp. 952 (1956), and Pyle v. United States, 143 Ct. Cl. 339, 163 F. Supp. 853 (1958)). The commissioner thought, however, that the petition sufficiently alleged the challenged errors in the ASBCA decision, and did not require amendment. The defendant also complained of plaintiff’s failure to allege specific administrative error in its requested findings of fact, but the commissioner felt that such a showing was better left to the briefs; although in this case the plaintiff simply filed its ASBCA brief, this infirmity was not deemed to be fatal. Another of the Government’s attacks was on the plaintiff’s failure to include record support for its proposed findings, in violation of our Buie 57(c) (1). The commissioner recognized the force of this contention but concluded nevertheless “that the various contentions raised by plaintiff before the ASBCA and rejected by it were delineated to the extent that they can be scrutinized in order to determine whether the ASBCA findings were supported by substantial evidence.” Report of Qovrmdr, p. 5. Although the defendant strongly urges us to dismiss the petition, even at the present phase of the litigation, on these same grounds urged below, we cannot say that the trial commissioner abused his discretion in proceeding to review the administrative decision on the merits. The court has often said that contractors should be specific in challenging the findings of a board, and that the court cannot be expected to plough through a record for itself without adequate record references and sufficiently detailed challenges to the administrative findings. We do not retreat one iota from that position, and we do not encourage the commissioners to gloss over too-general or inadequately supported attacks on board findings. But the rule is one of discretion and not an iron rule of law, and where a trial commissioner has" }, { "docid": "19025103", "title": "", "text": "their respective contentions in the Court below. The accounting proceeding was referred to Honorable Henry R. Sackett, as Special Master, by order dated February 10, 1953. The pre-trial hearing and proceedings extended over a period of three and one-half years. The hearing before the Master occupied a full month, September 25 to October 25, 1956. Twenty witnesses were examined and cross-examined, and the stenographic transcript of the trial came to 3,045 pages. Seven hundred and twelve documentary exhibits were put in evidence. Motion pictures, welding demonstrations and other forms of evidence were presented. Records and exhibits from the previous hearings were incorporated by reference. After the trial, both sides submitted printed briefs to the Master, together with proposed findings of fact and conclusions of law. Oral argument before the Master on these proposed findings occupied four days. The Master, after having the case under consideration for almost a year, submitted a draft report to counsel. Numerous objections were interposed to the Master’s proposed findings and conclusions. Union Carbide in the main acquiesced in the proposed findings but interposed objections to certain of the Master’s conclusions. On the other hand, Graver objected to many of the proposed findings, as well as to some of the conclusions. After a hearing on the objections to the proposed report, the Master made a number of changes in his proposed findings and conclusions of law. On June 4, 1958, the report was signed in printed form and filed with the District Court. Objections to the report were argued before Judge Swygert for two days, at the conclusion of which the Court adopted the Master’s findings of fact but modified his conclusions of law in certain respects. Union Carbide in its brief states, “It is not likely that any other matter has had more thoughtful and thorough study and attention than the Master’s findings in this record.” With this statement we agree. In addition to the Master’s outstanding work, we are not unmindful of the fact that Judge Swygert, who heard and passed upon objections to the Master’s report, has been with this case from its" }, { "docid": "23225966", "title": "", "text": "invoke both standards, de novo and clearly erroneous. However, Friedman does not appeal from a summary judgment, as did the appellant in Schuman, but from an adverse judgment following trial based on detailed findings of fact. While Friedman largely argues that the findings are undisputed, and that the court’s conclusions therefrom are erroneous, he hedges his bets with some contention that the trial court’s findings themselves were erroneous. Thus we are urged to review the findings on a de novo basis and also under the clearly erroneous standard. While appellant’s principal arguments are directed to de novo considerations, our determinations are based on considerations which are consistent with clearly erroneous standards insofar as they are applicable. IV. DISCUSSION A. Record on appeal. We are hampered in our effort to substantively review this case by the failure of both parties to fully comply with the Federal Rules of Appellate Procedure and the Bankruptcy Appellate Panel Rules. F.R. A.P. 10(b)(2) provides that: If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion, (emphasis supplied.) While we may, consistent with the clearly erroneous standard, affirm the trial court’s decision based upon any evidence appearing in the record, our task has been made difficult by the failure of either party to provide us with, and specifically .reference to, those portions of the record wherein support for their respective positions is asserted to be found. In In re Burkhart, 84 B.R. 658 (9th Cir. BAP 1988), we were similarly faced with a record on appeal the scantness of which made review under the clearly erroneous standard difficult. The appellants there had failed in their brief to cite to the record in support of many of their assertions, and only supplied the Panel with a portion of the record on which the trial court relied. In an attempt to discourage this sort of practice by litigants appearing before us in the future, we observed" } ]

[ { "docid": "15830668", "title": "", "text": "The first of the two questions presented on this review is: “Has the court the authority to order the sale of the homestead as an entirety including therein the interest of the wife, Genevieve Blodgett, who owns the premises jointly with her husband, the bankrupt?” The answer to this question clearly must be in the affirmative. Section 2, sub. a(7), Chapter 2 of the Bankruptcy Act, 11 U.S.C.A. § 11, sub. a(7), gives the Bankruptcy Court jurisdiction to: “(7) cause the estates of bankrupts to be collected, reduced to money, and distributed, and determine controversies in relation thereto, except as herein otherwise provided, and determine and liquidate all inchoate or vested interests of the bankrupt’s spouse in the property of any estate whenever, under the applicable laws of the State, creditors are empowered to compel such spouse to accept-a money satisfaction for such interest;” The question arises as to whether under Wisconsin law the spouse, Genevieve Blodgett, could be compelled to accept a money satisfaction for her interest in these premises. Under the provisions of the Bankruptcy Act, the trustee of the estate of the bankrupt, upon his appointment and qualification, is vested by operation of law with the title of the bankrupt to all property not exempt, as of the date of the filing of the petition in bankruptcy. 11 U.S.C.A. § 110. Thus, by operation of law, the trustee here has become vested with title to the bankrupt’s interest in the property. The joint tenancy between the bankrupt and his spouse has been severed, and the trustee and the bankrupt’s spouse each have a half interest in the property as tenants in common. In Wisconsin the trustee as tenant in common can have a partition pursuant to Section 276.01 of the Wisconsin Statutes, which provides in part: Joint tenants, or tenants in common of lands, may have partition thereof * * In addition, Sections 272.20, 272.21 and 370.01(14) of the Wisconsin Statutes provide clear authority for ordering a sale of a homestead, transferring the owner’s homestead rights to the proceeds, and making the excess available for creditors. The" } ]

[ { "docid": "6373651", "title": "", "text": "F.2d 773, 775 (6th Cir.1985). Once having come into the bankruptcy estate, however, the entireties property may nevertheless be exempted from property of the estate, if permitted by non-bankruptcy state law. Section 522(b)(2)(B) provides that a debtor may exempt from property of the estate: [A]ny interest in property in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety or joint tenant to the extent that such interest as a tenant by the entirety or joint tenant is exempt from process under applicable non-bankruptcy law. 11 U.S.C. § 522(b)(2)(B). Missouri’s non-bankruptcy law allows a debtor filing bankruptcy to exempt from property of the bankruptcy estate “any property that is exempt from attachment and execution under the law of the state of Missouri... ”Mo. Rev. Stat. § 513.427. Missouri’s non-bankruptcy law clearly exempts from attachment and execution en- tireties property where only one of the entirety interest holders is indebted. Garner, 952 F.2d at 285, fn. 1, citing Otto F. Stifel’s Union Brewing Co. v. Saxy, 273 Mo. 159, 201 S.W. 67, 71 (1918). If a creditor is to reach tenancy by the entire-ties property in Missouri, the spouses must have jointly acted to burden the property. Garner, 952 F.2d at 235. In Gamer, the Eighth Circuit held that certain stock owned by the husband and wife as tenants by the entireties could not be exempted from the husband’s bankruptcy estate because the husband and wife had joint debts and the stock would be subject to attachment and execution to satisfy those joint debts. The question then became how to appropriately distribute the stock. The Court noted that § 363(h)(1) of the Code permits the sale of both the bankrupt estate’s interest and the interest of any co-owner in tenancy by the entireties property when, as in this case, partition in kind of the entireties property is impracticable. 11 U.S.C. § 363(h)(1). However, because the stock had already been liquidated in the Gamer case, it could not be partitioned in accordance with § 363(h). Accordingly, “in order to comply with the intent" }, { "docid": "6373654", "title": "", "text": "proceeds from the hypothetical sale of the Van Der Heides’ residence property, which Gerard Robert Van Der Heide owned as a tenant by the entirety with his non-bankrupt spouse. Because a residence cannot be partitioned and because Van Der Heide’s wife was jointly responsible for the mortgage debt, the trustee could liquidate the residence on the basis of § 363(h), the Court noted. “In the event of such a sale, the trustee would distribute the net proceeds to the estate and Van Der Heide’s wife according to their respective interests. See 11 U.S.C. § 363(j). Our decision in Gamer defines those rights.” Van Der Heide, 164 F.3d at 1184-85. The Court then continued: “In Gamer, like this case, both husband and wife owned property as tenants by the entirety and, while both husband and wife were joint debtors, only the husband had declared bankruptcy. See 952 F.2d at 233. Balancing the notion that the bankruptcy estate is composed of all legal and equitable interests of the debtor in property at the time of the petition, see 11 U.S.C. § 541(a)(1), and the fact that under Missouri law tenants by the entirety own indivisible interests in entireties property, see Ronollo v. Jacobs, 775 S.W.2d 121, 123 (Mo.1989) (en banc), we ordered that one-half of the entireties property be returned to the wife, reasoning that doing so did not insulate her from whatever recourse her creditors might have against her. This resolution was consistent with the legislative history of § 541: The bill also changes the rules with respect to marital interests in property.... With respect to other co-ownership interest(s), such as tenancies by the entirety, ... the bill does not invalidate the rights, but provides a method by which the estate may realize on the value of the debtor’s interest in the property while protecting the [co-tenant’s] rights. H.R.Rep. No. 95-595 at 177 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 6137. Accordingly, the result in Gamer was an equitable rule that preserves the balance of the breadth of federal bankruptcy and state property law. :|: * Hi * * * In Gamer," }, { "docid": "4728381", "title": "", "text": "could have been transferred by the bankrupt or levied upon and sold by his creditors. 11 U.S.C. § 110(a)(5) (1976). As to entirety property, that meant the trustee acquired title to what the bankrupt could convey free of his spouse’s interest and what his individual creditors could levy upon and sell. See Craig, above at 262-263. That was a matter of state law. For example, in Tennessee neither spouse alone can make any conveyance that will affect the other’s interest. But each can convey his or her right of survivorship, and it can be levied upon and sold by his or her individual creditors. See Citizens & Southern National Bank v. Auer, 640 F.2d 837 (6th Cir. 1981); In re Templeton, 1 B.R. 245, 21 C.B.C. 710 (Bkrtcy. Ct. E.D. Tenn.1979) (Peters v. White County Farm Supply, Inc.); Robinson v. Trousdale County, above. Thus the trustee in bankruptcy for one spouse obtained title only to the bankrupt’s right of survivorship. The situation was different in other states. But when one spouse filed bankruptcy, it still caused problems for the joint creditors, particularly if the other spouse later filed. Craig, above at 267-272. Proposed reforms of the bankruptcy law undertook to cure the problems with entirety property when only one spouse filed bankruptcy. In particular, the Commission on Bankruptcy Laws of the United States proposed a two-step process. Report of the Commission on Bankruptcy Laws of the United States, H.R.Doc.No. 93-197, 93d Cong., 1st Sess. Part I at 195-196 (1973). First, the definition of property that passed to the bankruptcy estate was made broad enough to include all of a bankrupt spouse’s interest in entirety property, rather than just the interest which was transferable or leviable under state law. Report, Part II § 4-601 at 147. Second, the trustee was given the right to sell the interest that came into the estate and the other spouse’s interest. In other words, the trustee could sell the property as could the husband and wife acting together. The non-bankrupt spouse’s rights were to be protected by distribution of the proceeds. Report, Part II §" }, { "docid": "4728379", "title": "", "text": "the case, an undivided interest as a tenant in common, joint tenant, or tenant by the entirety, only if— (1) partition in kind of such property among the estate and such co-owners is impracticable; (2) sale of the estate’s undivided interest in such property would realize significantly less for the estate than sale of such property free of the interests of such co-owners; (3) the benefit to the estate of a sale of such property free of the interests of co-owners outweighs the detriment, if any, to such co-owners; and (4) [not relevant] The meaning or purpose of § 363(h) is best understood by considering its history. That begins with the law under the code’s predecessor, the Bankruptcy Act. The court is particularly concerned with how the Act treated property owned by the bankrupt and his wife as tenants by the entirety. Only a husband and wife can be tenants by the entirety. They are treated as one person who owns the property. Taul v. Campbell, 15 Tenn. 318 (1835). The two chief attributes of a tenancy by the entirety derive from that concept. The first attribute is inalienability. During their married lives, both spouses must join in a conveyance in order for it to convey complete ownership. A conveyance by one spouse will leave the other’s ownership undisturbed. The second attribute is the right of survivorship. When one spouse dies, the other is the sole owner of the property without any interest passing by inheritance. Robinson v. Trousdale County, 516 S.W.2d 626 (Tenn.1974). Typically, the interest of each spouse in entirety property includes the right of survivorship and the right to use, possess, and enjoy the property during the marriage. Craig, An Analysis of Estates by the Entirety in Bankruptcy, 48 Bankr. L.J. 255, 256-259 (1974). That is the law in Tennessee. Robinson v. Trousdale County, 516 S.W.2d 626, 632 (Tenn.1974). But under the Bankruptcy Act, the trustee did not necessarily succeed to all of a bankrupt spouse’s rights or interest in entirety property. Section 70(a)(5) provided that the trustee acquired title to any property that prior to bankruptcy" }, { "docid": "14347597", "title": "", "text": "for Cuyahoga County, Ohio, February 17, 1975). We further conclude that, irrespective of the fact that the FDIC-receiver is a party to the counterclaim, the bankruptcy court has no sufficient, independent ground upon which to base the jurisdiction of that court. The bankruptcy court held that federal jurisdiction was appropriate because it had “possession” of the “chose in action being asserted by the receiver and liquidating trustee of the bankrupt corporation [David Cuvrell]” against FDIC-receiver. 17 B.R. at 981. The right to possession of all property “owned or possessed by the bankrupt rests in the bankruptcy trustee as of the date of the filing of the petition in bankruptcy.” Isaacs v. Hobbs Tire & Lumber Co., 282 U.S. 734, 737, 51 S.Ct. 270, 271, 75 L.Ed. 645 (1931). Under what is described as the bankruptcy court’s summary jurisdiction, it has exclusive jurisdiction to determine and liquidate all claims dealing with property that is within the actual or constructive possession of the trustee or receiver in bankruptcy. See Id.; Harrison v. Chamberlain, 271 U.S. 191, 193, 46 S.Ct. 467, 468, 70 L.Ed. 897 (1926). This grant of jurisdiction comes from section 2(a)(7) of the Bankruptcy Act of 1898, 11 U.S.C. § 11(a)(7), which provides as follows: § 11. Creation of courts of bankruptcy and their jurisdiction (a) The courts of the United States hereinbefore defined as courts of bankruptcy are hereby created courts of bankruptcy and are hereby invested, within their respective territorial limits as now established or as they may be hereafter changed, with such jurisdiction as law and in equity as will enable them to exercise original jurisdiction in proceedings under this title, in vacation, in chambers, and during their respective terms, as they are now or may be hereafter held, to— (7) Cause the estates of bankrupts to be collected, reduced to money, and distributed, and determine controversies in relation thereto, except as herein otherwise provided, and determine and liquidate all inchoate or vested interests of the bankrupt’s spouse in the property in any estate whenever, under the applicable laws of the State, creditors are empowered to compel" }, { "docid": "18715241", "title": "", "text": "the bankruptcy estate, and the court accordingly directed the sale of only that interest, and not the sale of the land in fee simple. Section 363(h) of the Code provides in relevant part: “(h) Notwithstanding subsection (f) ... the trustee may sell both the estate’s interest under subsection (b) ... and the interest of any co-owner in property in which the debtor had immediately before commencement of the ease, an undivided interest as a tenant in common, joint tenant, or tenant by the entirety, only if— “(1) partition in kind of such property among the estate and such co-owners is impracticable; “(2) sale of the estate’s undivided interest in such property would realize significantly less for the estate than sale of such property free of the interests of such co-owners; “(3) the benefit to the estate of a sale of such property free of the interests of co-owners outweighs the detriment, if any, to such co-owners; and “(4) [not relevant]” Under the Bankruptcy Act, the predecessor of the Bankruptcy Code, the trustee acquired title to any property that prior to bankruptcy, could have been transferred by the bankrupt or levied upon by his creditors, 11 U.S.C. Sec. 110(a)(5) (1976). Thus with regard to property held by the entirety, the trustee acquired title only to that property interest that the bankrupt could have conveyed free of his spouse’s interest and which his individual creditors could levy upon and sell. In Tennessee, neither spouse can convey or encumber property held by the entirety in a manner that will affect the other’s interest, Robinson v. Trousdale County, 516 S.W.2d 626, 632 (Tenn.1974), each spouse being able only to transfer his or her right of survivorship, and only that interest being subject to levy and sale by that spouse’s creditors. See Citizens & Southern National Bank v. Auer, 640 F.2d 837 (6th Cir. 1981). As a result, under the prior bankruptcy law, the trustee acquired title only to the bankrupt’s right of survivorship. The new Bankruptcy Code operates in a somewhat different fashion but achieves the same result in Tennessee. Under the Code, Sec." }, { "docid": "9773452", "title": "", "text": "endorse the refund check, which was made payable to “Gary G. & Joan M. Wetteroff,” to enable the proceeds to be administered upon as an asset of the bankrupt husband’s estate. Following an evidentiary hearing, the referee granted the requested order. Under the Bankruptcy Act the trustee may reach every kind of property capable of being transferred by the bankrupt or levied upon by his creditors or otherwise seized and sold by judicial process. 11 U.S.C. § 110(a) (5). The law of the state where the property is situated determines the extent of the bankrupt’s interest in the property and whether the interest is transferable. Thus state law may prevent the title of certain properties from vesting in the trustee in bankruptcy. In Missouri, property held under the form of ownership described as a tenancy by the entirety is not an asset includable in the bankrupt's estate, i. e., the trustee does not succeed to entirety property under § 70(a) of the Bankruptcy Act (11 U.S. C. § 110(a)), United States v. Hutcherson, 188 F.2d 326 (CA8 1951); Blodgett v. United States, 161 F.2d 47 (CA8 1947) and Shipman v. Fitzpatrick, 350 Mo. 118, 164 S.W.2d 912 (1942), unless both the husband and wife are petitioners in bankruptcy and the proceedings are consolidated. See Shipman, supra, at 913-914. Compare, Dickey v. Thompson, 323 Mo. 107, 18 S.W.2d 388 (1929). Neither the husband nor the wife has a separate and identifiable interest or moiety in entirety property, they hold per tout et non per my, a result of the common law’s treatment of the husband and wife as one legal person — a legal unity of the spouses. Each owns the whole of the estate and severance is an impossibility save by death or divorce. Upon death the estate continues in the surviving spouse. Contrary to the common law, however, Missouri recognizes entirety estates in personalty and also allows such an estate to be created by a conveyance from a husband to himself and his wife. Indeed, in any conveyance to a husband and wife, there is a rebuttable presumption that" }, { "docid": "18715242", "title": "", "text": "any property that prior to bankruptcy, could have been transferred by the bankrupt or levied upon by his creditors, 11 U.S.C. Sec. 110(a)(5) (1976). Thus with regard to property held by the entirety, the trustee acquired title only to that property interest that the bankrupt could have conveyed free of his spouse’s interest and which his individual creditors could levy upon and sell. In Tennessee, neither spouse can convey or encumber property held by the entirety in a manner that will affect the other’s interest, Robinson v. Trousdale County, 516 S.W.2d 626, 632 (Tenn.1974), each spouse being able only to transfer his or her right of survivorship, and only that interest being subject to levy and sale by that spouse’s creditors. See Citizens & Southern National Bank v. Auer, 640 F.2d 837 (6th Cir. 1981). As a result, under the prior bankruptcy law, the trustee acquired title only to the bankrupt’s right of survivorship. The new Bankruptcy Code operates in a somewhat different fashion but achieves the same result in Tennessee. Under the Code, Sec. 541(a)(1), 11 U.S.C. Sec. 541(a)(1), includes in the bankruptcy estate all the legal or equitable property interests of the bankrupt as of the commencement of the case. Then Section 522, 11 U.S.C. Sec. 522, allows the bankrupt certain exemptions. Specifically, in this case, the bankrupt chose to exercise his exemptions under Section 522(bX2)(B) which reads: “(b) Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate ... “(2)(B) any interest in property in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety or joint tenant to the extent that such interest as a tenant by the entirety or joint tenant is exempt from process under applicable nonbank-ruptcy law.” (emphasis added). Since in Tennessee, property held by the entirety is exempt from process by the creditors of an individual spouse, Robinson v. Trusdale County, 516 S.W.2d 626, 632 (Tenn.1974), the bankruptcy court correctly held that the two parcels of land in the instant case were exempt from the bankruptcy estate" }, { "docid": "6373652", "title": "", "text": "Mo. 159, 201 S.W. 67, 71 (1918). If a creditor is to reach tenancy by the entire-ties property in Missouri, the spouses must have jointly acted to burden the property. Garner, 952 F.2d at 235. In Gamer, the Eighth Circuit held that certain stock owned by the husband and wife as tenants by the entireties could not be exempted from the husband’s bankruptcy estate because the husband and wife had joint debts and the stock would be subject to attachment and execution to satisfy those joint debts. The question then became how to appropriately distribute the stock. The Court noted that § 363(h)(1) of the Code permits the sale of both the bankrupt estate’s interest and the interest of any co-owner in tenancy by the entireties property when, as in this case, partition in kind of the entireties property is impracticable. 11 U.S.C. § 363(h)(1). However, because the stock had already been liquidated in the Gamer case, it could not be partitioned in accordance with § 363(h). Accordingly, “in order to comply with the intent of the Code,” the Eighth Circuit ordered that one-half of the cash received for the stock be returned to Margie Garner, the non-bankrupt spouse. “Returning one-half of the proceeds from the sale of the stock shares to Margie Garner does not insulate her from creditors pursuing whatever actions they possess against her.” Garner, 952 F.2d at 236. It would be fair to say that the Eighth Circuit’s decision in Gamer has generated much debate and discussion in the bankruptcy bar and bench in Missouri, particularly as to how or in what order to distribute the proceeds from the sale of entireties property. Fortunately, the Court of Appeals had an opportunity to revisit the issue in Van Der Heide, and it seized that opportunity to explain and clarify its earlier ruling. Van Der Heide was a Chapter 13 case in which the Court had to determine whether the plan proposed by the debtor-husband satisfied the “best interests of creditors” test of 11 U.S.C. § 1325(a)(4). The answer to that question turned on the disposition of the" }, { "docid": "5739699", "title": "", "text": "interest ... is exempt from process under applicable nonbankruptcy law.” 11 U.S.C. § 522(b)(2)(B). In Missouri, creditors may reach entireties property only if the obligations have been jointly incurred. See Garner, 952 F.2d at 235 (“[Ujnder Missouri law, for a creditor to reach tenancy by the entirety property, the spouses must have jointly acted to burden the property.”); Landmark Bank v. Charles (In re Charles), 123 B.R. 52, 55 (Bankr.E.D.Mo.1991) (“[Ujnder Missouri law, entireties property is not exempt from process to the extent of joint debts.”); Matter of Estate of Savage, 650 S.W.2d 346, 351 (Mo.Ct.App.1983) (holding that property held in tenancy by the entirety “is not subject to a lien or attachment for the debt of one tenant.”) (emphasis added). Since the parties stipulate that Van Der Heide’s debts were jointly incurred with his wife, the property is not exempt from attachment by joint creditors. Debtor’s Interest in Entireties Property Since the property in question is homestead property incapable of partition, a Chapter 7 trustee would be entitled to sell both the debtor’s and his wife’s interest in the property. 11 U.S.C. § 363(h). After such a sale, the trustee would be obligated to distribute the net proceeds to the debtor’s wife, according to her interest and the interest of the estate. 11 U.S.C. § 363(j); Garner, 952 F.2d at 236 n. 5. Van.Der Heide argues that a Chapter 7 trustee would distribute one-half of the sale proceeds to his wife since she owns a one-half interest in the property. However, Missouri courts have routinely concluded that each tenant by the entirety owns an indivisible interest in the whole estate. See Ronollo v. Jacobs, 775 S.W.2d 121, 123 (Mo.1989) (en banc) (“Each spouse is seized of the whole or entirety and not a share, moiety or divisible part. Thus, neither spouse owns an undivided half interest in entirety property; the whole entirety estate is vested and held in each spouse....”); Nelson v. Hotchkiss, 601 S.W.2d 14, 20 (Mo.1980) (en banc) (“In an estate of the entirety the husband and the wife ... each owns, not a part, or a" }, { "docid": "10250505", "title": "", "text": "of the other party. (5) The opportunity of each party for future acquisitions of capital assets and income. (6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits. (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker. (8) The value of the property set apart to each party. (9) The standard of living of the parties established during the marriage. (10) The economic circumstances of each party at the time the division of property is to become effective. Although not mentioned in § 401(d), § 401(b) makes equitable distribution dependent upon a decree terminating the marriage, either by divorce or annulment. The debtor suggests that 11 U.S. C. § 363(j) grants to this court the power to equitably divide the marital property in whatever manner it chooses, irrespective of state law. I disagree; this subsection permits the division of sale proceeds “according to the interests of such spouse or co-owners, and of the estate.” The interests of each spouse are defined by state law. To the extent the trustee has a property interest, his interest is derived from and equivalent to the debtor’s interest at the time the case commenced: The courts are frequently moved to reassert the general rule that the Act “does not vest the trustee with any better right or title to the bankrupt’s prop erty than belongs to the bankrupt or his creditors at the time when the trustee’s title accrued.” This is true in that the bankruptcy trustee is not a bona fide purchaser or encumbrancer for value, but takes the property subject to all valid claims, liens and equities. When it is said, however, that the trustee “stands in the shoes of the bankrupt” and has no better title than the bankrupt had at the time of the filing of the petition, it is to be remembered that these general pronouncements are subject to well recognized exceptions created by the Bankruptcy Act itself, through which the trustee" }, { "docid": "14347598", "title": "", "text": "46 S.Ct. 467, 468, 70 L.Ed. 897 (1926). This grant of jurisdiction comes from section 2(a)(7) of the Bankruptcy Act of 1898, 11 U.S.C. § 11(a)(7), which provides as follows: § 11. Creation of courts of bankruptcy and their jurisdiction (a) The courts of the United States hereinbefore defined as courts of bankruptcy are hereby created courts of bankruptcy and are hereby invested, within their respective territorial limits as now established or as they may be hereafter changed, with such jurisdiction as law and in equity as will enable them to exercise original jurisdiction in proceedings under this title, in vacation, in chambers, and during their respective terms, as they are now or may be hereafter held, to— (7) Cause the estates of bankrupts to be collected, reduced to money, and distributed, and determine controversies in relation thereto, except as herein otherwise provided, and determine and liquidate all inchoate or vested interests of the bankrupt’s spouse in the property in any estate whenever, under the applicable laws of the State, creditors are empowered to compel such spouse to accept a money satisfaction for such interest; and where in a controversy arising in a proceeding under this title an adverse party does not interpose objection to the summary jurisdiction of the court of bankruptcy, by answer or motion filed before the expiration of the time prescribed by law or rule of court or fixed or extended by order of court for the filing of an answer to the petition, motion or other pleading to which he is adverse, he shall be deemed to have consented to such jurisdiction; The issue under this jurisdictional standard is whether the chose in action of the trustee-receiver of the bankrupt arising out of the letters of credit was property within the active or constructive possession of the bankruptcy court. In In re F & T Contractors, Inc., 649 F.2d 1229 (6th Cir.1981) (involving litigation between Mr. Cuvrell, trustee-receiver, and Old Orchard arising out of F & T Contractor’s bankruptcy), this court held that a bankruptcy court has possession, and therefore jurisdiction over contract claims or" }, { "docid": "23699275", "title": "", "text": "Section is merely a codification of the pre- Code law. Under pre-Code law, property owned by the bankrupt with a non-bankrupt spouse and held by them as tenants by the entireties was not subject to liquidation. This was so, not for the reason that such property was exempt, but because such property was not subject to transfer, voluntarily or involuntarily, by the bankrupt without the consent of the non-bankrupt spouse, nor could a creditor of the bankrupt, who had no claim against the non-bankrupt spouse, subject such property to seizure through levy, sequestration or attachment. Since such property under the pre-Code law did not meet the test of transferability and leviability, such property was not subject to administration by the trustee simply because it was not the property of the estate within the meaning of § 70(a)(5) of the Bankruptcy Act. By way of comparison, the Code’s definition of the term “property of the estate” is an all inclusive definition and was intended to include all legal or equitable interests of the Debtor. In addition, the House Judiciary Committee in its Report addressed the issue of whether the debtor’s interest in entire-ties property is property of the estate when it stated: “The bill also changes the rules with respect to marital interests in property.... With respect to other co-ownership interest, such as tenancies by the entireties, joint tenancies, and tenancies in common, the bill does not invalidate the rights, but provides a method by which the estate may realize on the value of the debtor’s interest in the property while protecting the other rights. The trustee is permitted to realize on the value of the property by being permitted to sell it without obtaining the consent or waiver of rights by the spouse of the debtor or the co-owner, as may be required for a complete sale under applicable State law. The other interest is protected under H.R. 8200 by giving the spouse a right of first refusal at a sale of the property, and by requiring the trustee to pay over to the spouse the value of the spouse’s" }, { "docid": "22062354", "title": "", "text": "time of the commencement of the case including the debtor’s undivided interest — present interests in the use, possession, income, and right of survivorship— in property which he holds as a tenant by the entirety. This conclusion is further supported by several comparisons to be made between § 541(a)(1) of the Code and § 70(a) of the Bankruptcy Act. Section 70(a) defines the property of the estate under the Bankruptcy Act, which dealt with concepts such as title, alienability, and transferability. Section 70(a)(5) provides that: The trustee of the estate of a bankrupt . . shall ... be vested . with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this title, except insofar as it is to property which is held to be exempt, to all of the following kinds of property wherever located ... (5) property, including rights of action, which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded or sequestered . 11 U.S.C. § 110(a)(5). Under § 70(a) where state law is such that entirety property can neither be transferred by either spouse acting alone nor subjected to judicial process to satisfy the claims of the individual creditors of one spouse, the bankrupt spouse’s interest in entirety property did not vest in the trustee of the individual spouse and therefore did not become an asset of the estate in bankruptcy. Reid v. Richardson, 304 F.2d 351, 353 (4th Cir. 1962); Phillips v. Krakower, 46 F.2d 764, 765 (4th Cir. 1931); Dioguardi v. Curran, 35 F.2d at 432 (applying Maryland law). Consequently under the Act, property owned by a bankrupt and his nonbankrupt spouse as tenants by the entirety under Maryland law remained undisturbed by proceedings in bankruptcy. The court first notes that § 541(a) does not contain the transferability prerequisites present in § 70(a). As a result, § 541(a) does not restrict interests in entireties property and other non-transferable interests from becoming assets" }, { "docid": "10250506", "title": "", "text": "or co-owners, and of the estate.” The interests of each spouse are defined by state law. To the extent the trustee has a property interest, his interest is derived from and equivalent to the debtor’s interest at the time the case commenced: The courts are frequently moved to reassert the general rule that the Act “does not vest the trustee with any better right or title to the bankrupt’s prop erty than belongs to the bankrupt or his creditors at the time when the trustee’s title accrued.” This is true in that the bankruptcy trustee is not a bona fide purchaser or encumbrancer for value, but takes the property subject to all valid claims, liens and equities. When it is said, however, that the trustee “stands in the shoes of the bankrupt” and has no better title than the bankrupt had at the time of the filing of the petition, it is to be remembered that these general pronouncements are subject to well recognized exceptions created by the Bankruptcy Act itself, through which the trustee is given powers to assert claims against property in the hands of others where the bankrupt would be estopped to act and, in some cases, where there are no creditors who could assert such claims. 4A Collier on Bankruptcy ¶ 70.04 at 55-57 (14th ed. 1978) (footnotes omitted). Accord e.g. In re Stephen Smith Home for the Aged, Inc. (debtor’s right to proceeds from charitable trusts fixed as of the time of filing). Cf. Brown v. Brown, 38 Am.B.R. 356 (Sup.Ct., Ky.1916) (trustee takes title subject to divorced wife’s right to occupy residence). Section 363 may grant the trustee the power to sell the interest of the nondebtor, in some circumstances, but does not increase the trustee’s portion of the proceeds beyond that which the debtor had at the time the case commenced. In order to resolve this dispute, another issue implicitly raised by the debtor must be addressed: whether the nondebtor spouse has a cognizable interest in equitable division if a bankruptcy petition is filed prior to the state court determination. The Ziets court" }, { "docid": "1108933", "title": "", "text": "participation.” Id. Relying on these precepts, the Kaufmann court concluded that because the creditor failed to show that the debtor-spouses contracted jointly to pay the creditor, the creditor could not gain a lien on the spouses’ entirety property. Id. at 33. Based on the above cases, we conclude that were the question before the Supreme Court of Missouri in a nonbankruptcy context, that court would not prevent creditors from accessing tenancy by the entirety property where the entirety owners were jointly indebted to the creditors. This conclusion accords with Congress’ intent to bring all of a bankrupt individual’s property interests into the bankruptcy estate and then equitably protect the nonbankrupt individual’s interest in the property. See discussion supra part I and cases cited therein; see also H.R.Rep. No. 595, 95th Cong., 1st Sess. 177 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6137-38. Before concluding our section 522(b)(2)(B) discussion, we note that had this section instructed us to apply Missouri’s bankruptcy law, as opposed to its nonbankruptcy law, we would have reached an opposite conclusion. See, e.g., Shipman v. Fitzpatrick, 350 Mo. 118, 164 S.W.2d 912, 913 (1942) (“A trustee in bankruptcy has no interest in land held by the entirety where only one of the two tenants by the entirety goes into bankruptcy.”). III. Trustee’s Administration of Assets Having failed to qualify as exempt under section 522(b)(2)(B) of the Bankruptcy Code, the stock at issue here is part of Franklin Garner’s bankruptcy estate pursuant to section 541(a) of the Code. Our ruling, however, leaves open the question of the trustee’s disposition of the stock. If liquidation is the intent of the trustee, as is the case here, 11 U.S.C. § 363 (1988) governs the trustee’s disposition of the stock. Subsection (h) of section 363 of the Code permits the sale of both the bankrupt estate’s interest and the interest of any co-owner in tenancy by the entirety property, with specified limitations. The first of these limitations, that partition in kind of the entirety property must be impracticable to permit the sale of the nonbankrupt co-owner’s interest, is" }, { "docid": "4728380", "title": "", "text": "a tenancy by the entirety derive from that concept. The first attribute is inalienability. During their married lives, both spouses must join in a conveyance in order for it to convey complete ownership. A conveyance by one spouse will leave the other’s ownership undisturbed. The second attribute is the right of survivorship. When one spouse dies, the other is the sole owner of the property without any interest passing by inheritance. Robinson v. Trousdale County, 516 S.W.2d 626 (Tenn.1974). Typically, the interest of each spouse in entirety property includes the right of survivorship and the right to use, possess, and enjoy the property during the marriage. Craig, An Analysis of Estates by the Entirety in Bankruptcy, 48 Bankr. L.J. 255, 256-259 (1974). That is the law in Tennessee. Robinson v. Trousdale County, 516 S.W.2d 626, 632 (Tenn.1974). But under the Bankruptcy Act, the trustee did not necessarily succeed to all of a bankrupt spouse’s rights or interest in entirety property. Section 70(a)(5) provided that the trustee acquired title to any property that prior to bankruptcy could have been transferred by the bankrupt or levied upon and sold by his creditors. 11 U.S.C. § 110(a)(5) (1976). As to entirety property, that meant the trustee acquired title to what the bankrupt could convey free of his spouse’s interest and what his individual creditors could levy upon and sell. See Craig, above at 262-263. That was a matter of state law. For example, in Tennessee neither spouse alone can make any conveyance that will affect the other’s interest. But each can convey his or her right of survivorship, and it can be levied upon and sold by his or her individual creditors. See Citizens & Southern National Bank v. Auer, 640 F.2d 837 (6th Cir. 1981); In re Templeton, 1 B.R. 245, 21 C.B.C. 710 (Bkrtcy. Ct. E.D. Tenn.1979) (Peters v. White County Farm Supply, Inc.); Robinson v. Trousdale County, above. Thus the trustee in bankruptcy for one spouse obtained title only to the bankrupt’s right of survivorship. The situation was different in other states. But when one spouse filed bankruptcy, it still" }, { "docid": "6373653", "title": "", "text": "of the Code,” the Eighth Circuit ordered that one-half of the cash received for the stock be returned to Margie Garner, the non-bankrupt spouse. “Returning one-half of the proceeds from the sale of the stock shares to Margie Garner does not insulate her from creditors pursuing whatever actions they possess against her.” Garner, 952 F.2d at 236. It would be fair to say that the Eighth Circuit’s decision in Gamer has generated much debate and discussion in the bankruptcy bar and bench in Missouri, particularly as to how or in what order to distribute the proceeds from the sale of entireties property. Fortunately, the Court of Appeals had an opportunity to revisit the issue in Van Der Heide, and it seized that opportunity to explain and clarify its earlier ruling. Van Der Heide was a Chapter 13 case in which the Court had to determine whether the plan proposed by the debtor-husband satisfied the “best interests of creditors” test of 11 U.S.C. § 1325(a)(4). The answer to that question turned on the disposition of the proceeds from the hypothetical sale of the Van Der Heides’ residence property, which Gerard Robert Van Der Heide owned as a tenant by the entirety with his non-bankrupt spouse. Because a residence cannot be partitioned and because Van Der Heide’s wife was jointly responsible for the mortgage debt, the trustee could liquidate the residence on the basis of § 363(h), the Court noted. “In the event of such a sale, the trustee would distribute the net proceeds to the estate and Van Der Heide’s wife according to their respective interests. See 11 U.S.C. § 363(j). Our decision in Gamer defines those rights.” Van Der Heide, 164 F.3d at 1184-85. The Court then continued: “In Gamer, like this case, both husband and wife owned property as tenants by the entirety and, while both husband and wife were joint debtors, only the husband had declared bankruptcy. See 952 F.2d at 233. Balancing the notion that the bankruptcy estate is composed of all legal and equitable interests of the debtor in property at the time of the petition," }, { "docid": "16046921", "title": "", "text": "though he had not died or become insane: Provided, that in ease of death the widow and children shall be entitled to all rights of dower and allowance fixed by the laws of the state of the bankrupt’s residence.’ “The particular provision of the statute of Indiana considered in Taylor v. Voss, supra, pertinent to be considered here, did not deal with the rights of a survivor on the death of a spouse. “The Indiana statute provided: ‘If a husband die * * * leaving a widow, one-third of his real estate shall descend to her in fee-simple, free from all demands of creditors: Provided, however, That where the real estate exceeds in value ten thousand dollars, the widow shall have one-fourth only, and where the real estate exceeds twenty thousand dollars, one-fifth only, as against creditors.’ Rev. Stat. Ind. 1881, § 2483. “And then again: ‘In all eases of judicial sales of real property in which any married woman has an inchoate interest by virtue of her marriage, * * * such interest shall become absolute and vest in the wife in the same manner and to the same extent as such inchoate interest of a married woman now becomes absolute upon the death of the husband, whenever, by virtue of said sale, the legal title of the husband * * * shall become absolute and vested in the purchaser thereof.’ Rev. Stat. Ind. 1881, §§ 2508, 2509. “In Taylor v. Voss, supra, the latter section of the statute was invoked, it being contended that the adjudication in bankruptcy, followed by the appointment of the trustee, operated as a judicial sale, and entitled the wife of the bankrupt to her distributive share as upon the death of the bankrupt, and notwithstanding he was still in health. The Supreme Court of the United States in that connection followed the long-settled rule of the Supreme Court of Indiana, saying: ‘In the absence of any conflicting provision in the Bankruptcy Act the question of a wife’s interest in the bankrupt’s property is governed by the local law. “See Stellwagen v. Clum, 245" }, { "docid": "15830669", "title": "", "text": "the Bankruptcy Act, the trustee of the estate of the bankrupt, upon his appointment and qualification, is vested by operation of law with the title of the bankrupt to all property not exempt, as of the date of the filing of the petition in bankruptcy. 11 U.S.C.A. § 110. Thus, by operation of law, the trustee here has become vested with title to the bankrupt’s interest in the property. The joint tenancy between the bankrupt and his spouse has been severed, and the trustee and the bankrupt’s spouse each have a half interest in the property as tenants in common. In Wisconsin the trustee as tenant in common can have a partition pursuant to Section 276.01 of the Wisconsin Statutes, which provides in part: Joint tenants, or tenants in common of lands, may have partition thereof * * In addition, Sections 272.20, 272.21 and 370.01(14) of the Wisconsin Statutes provide clear authority for ordering a sale of a homestead, transferring the owner’s homestead rights to the proceeds, and making the excess available for creditors. The second question presented in this review is: “Is the bankrupt entitled to a $5,000 homestead exemption out of his interest alone?” The homestead exemption is provided for by Section 272.20 of the Wisconsin Statutes, as follows: “272.20 Homestead exemption definition. (1) An exempt homestead as defined in section 370.01 (14) selected by a resident owner and occupied by him shall be exempt from execution,- from the lien of every judgment and from liability for the debts of such owner to the amount of $5,000, except mortgages, laborers’, mechanics’ and purchase money liens and taxes and except as otherwise provided. Such exemption shall not be impaired by temporary removal with the intention to reoccupy the premises as a homestead nor by the sale thereof, but shall extend to the proceeds derived from such sale to an amount not exceeding $5,000, while held, with the intention to procure another homestead therewith, for 2 years. Such exemption extends to land owned by husband and wife jointly or in common and to the interest therein of tenants in common," } ]

[ { "docid": "11002950", "title": "", "text": "in Donawitz v. Danek, supra, appeared to indicate that a majority of the New York Court of Appeals was adhering to Seider primarily because of stare decisis and was unwilling to consider its extension beyond the type of fact situation where the doctrine had originally been applied. Moreover, this Court observes that the Second Circuit has said that the constitutionality of Seider would be extremely doubtful if it were applied in favor of nonresident plaintiffs. Farrell v. Piedmont Aviation, Inc., 411 F.2d 812, 816-17 (2d Cir. 1969), cert. denied, 396 U.S. 840, 90 S.Ct. 103, 24 L.Ed.2d 91 (1969); Minichiello v. Rosenberg, 410 F.2d 106, 109-10, aff’d en banc, 410 F.2d 117 (2d Cir. 1969), cert. denied, 396 U.S. 844,90 S.Ct. 69,24 L.Ed.2d 94 (1969). In Farrell, the Second Circuit upheld the district court’s refusal to apply Seider where the plaintiffs were New York citizens who had been appointed as administrators of the estate of several nonresidents of New York who had been killed in an airplane crash in North Carolina. The court looked beyond the citizenship of the administrators and said that, in reality, the suit was by nonresidents against nonresidents on a cause of action arising in another state. In such circumstances, the court stated that New York lacked meaningful contact with the claim, and so an assertion of jurisdiction by a court in New York would be constitutionally suspect. While the court in Farrell did not address the question as to what point in time should be looked to for purposes of determining residency under Seider, the underlying rationale of this decision supports the view that the crucial point in time should be when the cause of action arose, since New York would lack meaningful contact with the claim of an individual who was not a resident at the time of injury. It is undisputed that the plaintiff in the present case was a resident of New York at the time that this lawsuit was commenced, but the parties disagree as to his residency at the time of the accident. Plaintiff claims that he was a resident" } ]

[ { "docid": "14817092", "title": "", "text": "is not lessened by the fact that the accident occurred out of state. Therefore, a recognition of realities, rather than fictions, dictates the conclusion that this action is maintainable against Guaranty National, notwithstanding its no-action clause. No longer willing to accept the legal fiction created by no-action clauses, the New York courts have adopted judicial direct action. Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966); Simpson v. Loehmann, 21 N.Y. 2d 305, 287 N.Y.S.2d 633 234 N.E.2d 669 (1967); Minichiello v. Rosenberg, 410 F.2d 106 (2d Cir. 1968), cert. denied 396 U.S. 844, 90 S.Ct. 69, 24 L.Ed. 2d 94. However, the New York courts believed it necessary to resort to another legal fiction to achieve this result. In Seider v. Roth, supra, two New York residents were injured in an accident in Vermont through the negligence of a Canadian resident insured by a foreign liability insurer doing business in New York. The New York plaintiffs were unable to obtain personal jurisdiction over the individual nonresident insured but could obtain personal jurisdiction over the insurance company because it was doing business in New York. In order to reach the desired result, the New York court reasoned that the insurance company’s contractual obligation to defend and indemnify was a “debt” owing to the defendant insured, and, therefore, because plaintiffs were able to obtain personal jurisdiction over the insurer, they could through “attachment” of the debt owed the insured by the company acquire “quasi-in-rem” jurisdiction over the nonresident insured. The policy underlying the decision in Seider v. Roth, supra, is the court’s belief that when the plaintiff is able to obtain personal jurisdiction over the insurance company, he should be able to maintain an action against it to the extent of the policy limits because to this extent the insurance company is the real party in interest. Thus, recognizing the insurance company as the real party in interest, the New York court resorted to a legal fiction of labelling the duties of the insurer under the contract a “debt” and in effect created a direct action against" }, { "docid": "1277129", "title": "", "text": "Dade County, S.D.N.Y.1970, 310 F.Supp. 744. It is concluded that Shaffer does not require rejection of Seider v. Roth and Simpson. The jurisdiction exercised under those cases is one in favor of residents only, is available only against insurers suable in the state, requires giving adequate notice to the insured, and, in all probability, the judgment rendered in such a suit does not prejudice the named defendant’s right to relitigate the issues of liability and damages if he is sued again for the amount in excess of that recovered in the suit based on the Seider v. Roth attachment; and there remains the caution that the procedure may not be used as the means of obtaining a preference in the distribution of inadequate coverage in cases involving multiple claims and claimants. See Miniehiello v. Rosenberg, supra; Farrell v. Piedmont Aviation, Inc., supra. Sustaining the jurisdiction in the present case does not offend the policy considerations underlying Shaffer and preserves the anonymity of the defending insurance company in keeping with the policy of those states, which, like New York, do not authorize direct action against insurance carriers. It is ORDERED that defendant’s motion to set aside the service of process and to dismiss the action is denied. International Shoe raised the questions (1) whether the Company was liable to the state for unemployment compensation fund contributions based on the wages paid by the company to its eleven to thirteen salesmen resident in the state for their services in the state, and (2) whether, when the Company did not pay the contributions, the state could enforce payment by suit initiated by service of process on one of the resident salesmen. The Court concluded (326 U.S. at 320, 66 S.Ct. at 160): “Applying these standards, the activities carried on in behalf of appellant in the State of Washington were neither irregular nor casual. They were systematic and continuous throughout the years in question. They resulted in a large volume of interstate business, in the course of which appellant received the benefits and protection of the laws of the state, including the right to" }, { "docid": "22630137", "title": "", "text": "relations’ to those defending parties as to offend the requirements of due process.” Savchuk II, 272 N. W. 2d, at 893 (emphasis added). See, e. g., Farrell v. Piedmont Aviation, Inc., 411 F. 2d 812 (CA2 1969); Rintala v. Shoemaker, 362 F. Supp. 1044 (Minn. 1973); Donaivitz v. Danek, supra; Savchuk I. Mr. Justice Stevens, dissenting. As the Court notes, appellant Rush had no contact with Minnesota that would support personal jurisdiction over him in that State. Ante, at 322. Moreover, Shaffer v. Heitner, 433 U. S. 186, precludes the assertion of quasi in rem jurisdiction over his property in that forum if the intangible property attached is unrelated to the action. It does not follow, however, that the plaintiff may not obtain quasi in rem jurisdiction over appellant’s insurance policy, since his carrier does business in Minnesota and since it has also specifically contracted in the policy attached to defend the very litigation that plaintiff has instituted in Minnesota. In this kind of case, the Minnesota statute authorizing jurisdiction is correctly characterized as the “functional equivalent” of a so-called direct-action statute. The impact of the judgment is against the insurer. I believe such a direct-action statute is valid as applied to a suit brought by a forum resident, see Watson v. Employers Liability Assurance Corp., 348 U. S. 66, 72, even if the accident giving rise to the action did not occur in the forum State, see Minichiello v. Rosenberg, 410 F. 2d 106 (CA2 1968), cert. denied, 396 U. S. 844, so long as it is understood that the forum may exercise no power whatsoever over the individual defendant. As so understood, it makes no difference whether the insurance company is sued in its own name or, as Minnesota law provides, in the guise of a suit against the individual defendant. In this case, although appellant Rush may have a contractual obligation to his insurer to appear in court to testify and generally to cooperate in the defense of the lawsuit, it is my understanding that Minnesota law does not compel him to do so through the contempt" }, { "docid": "886429", "title": "", "text": "St. Louis, B. & M. Ry. v. Taylor, 266 U.S. 200, 207, 45 S.Ct. 47, 69 L.Ed. 247 (1924); Hoffman v. Missouri ex rel. Foraker, 274 U.S. 21, 47 S.Ct. 485, 71 L.Ed. 905 (1927); Michigan Central R.R. v. Mix, 278 U.S. 492, 49 S.Ct. 207, 73 L.Ed. 470 (1929); Denver & Rio Grande Western R.R. v. Terte, 284 U.S. 284, 52 S.Ct. 152, 76 L.Ed. 295 (1932); and International Milling Co. v. Columbia Transp. Co., 292 U.S. 511, 54 S.Ct. 797, 78 L.Ed. 1396 (1934). . While the opinion does not say so, the Santa Fe’s solicitors or shippers in Minnesota obviously caused other railroads to issue through bills of lading over the lines of the Santa Fe, and Santa Fe freight cars must have been in Minnesota as they are in almost every state. . Jurisdiction was obtained by attaching a ship arriving at Duluth. . We have recently stressed the importance of plaintiff’s residence in overcoming a defendant’s claim of denial of due process. Minichiello v. Rosenberg, 2 Cir., 410 F.2d 106 (1968), on rehearing in banc, 410 F.2d 117, 120 (concurring opinion of Judge Hays) (1969), cert. denied, 396 U.S. 844, 90 S.Ct. 69, 24 L.Ed.2d 94 (1969); Farrell v. Piedmont Aviation, Inc., 2 Cir., 411 F.2d 812, 816-817, cert. denied, 396 U.S. 840, 90 S.Ct. 103, 24 L.Ed.2d 91 (1969). . In Barnett, we reversed a lower court judgment dismissing a personal injury action for want of personal jurisdiction over an interstate railroad which operated only in Texas, Louisiana and Arkansas, though it had an office in New York which solicited freight and passenger service and had authority to issue bills of lading for shipments on its lines. The alleged injury occurred in Texas. In rejecting the argument that the suit imposed an undue burden on interstate commerce, we emphasized the significance of plaintiff’s New York residence. . In Moss, we upheld, over Commerce Clause objections, the assertion of jurisdiction by New York courts over an interstate railroad with its principal place of business in North Carolina, with no tracks of its own north of" }, { "docid": "1277118", "title": "", "text": "longer exists for the factor of insurance is now one of the essential elements of the pending cause of action (see Oltarsh v. Aetna Ins. Co., supra, 15 N.Y.2d p. 118, 256 N.Y.S.2d 577, 204 N.E.2d 622). To hold that service on the attorney retained by the insurance company does not constitute service upon the insurer only serves to perpetuate this fiction. That it is fiction is abundantly demonstrated by the present case. The services of Glatzer, Glatzer & Evans were retained and paid for by the insurer. They had complete control of the defense „ in the negligence action.” Seider v. Roth and Simpson came under exacting constitutional scrutiny in Minichiello v. Rosenberg, 2d Cir. 1968, 410 F.2d 106, and Farrell v. Piedmont Aviation, Inc., 2d Cir. 1969, 411 F.2d 812. Judge Friendly wrote in both cases. In the first, treating Seider v. Roth and Simpson as “in effect a judicially created direct action statute,” he concluded that it was not invalid. Of Watson the court said (410 F.2d at 110): “. . . the Justice’s final consideration — the plaintiff’s difficulty in bringing the defendant before the forum — applies with even greater force to the state of plaintiff’s residence than to that of injury in light of the development of long-arm statutes that will generally allow the state of injury to obtain personal jurisdiction of the insured and so avoid the need for a direct action against the insurer. “We thus believe that, all things considered, the Supreme Court would sustain the validity of a state statute permitting direct action against insurers doing business in the state in favor of residents as ■well as on behalf of persons injured in it.” The state’s interest in protecting its residents was considered to be as great as its interest in a nonresident’s in-state accident. The burden to the named defendant was considered as largely swept away by. the Simpson limitation of the recovery to the face amount of the policy, possibly a constitutionally required limitation. On rehearing in banc, Judge Friendly used Harris v. Balk to meet the argument" }, { "docid": "1249649", "title": "", "text": "to establish presence as a constitutional basis for jurisdiction over a nonresident was judicial overkill. See Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 420 n. 13 (9th Cir. 1977) (noting alter ego principles employed as an alternative ground to support jurisdiction under a quantitative “presence” analysis, in contrast with the minimum contacts approach employed when extraterritorial service was had on the non-resident itself). The availability of this alternative basis for jurisdiction persisted, however, until the Supreme Court decision in Shaffer. With the decision in Shaffer, the Supreme Court thoroughly undermined the remaining constitutional value of Cannon. Shaffer emphatically announced that “all assertions of state court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.” Shaffer, supra, 433 U.S. at 212-13, 97 S.Ct. at 2584-85. The Court in that case indicated 433 U.S. at 213, 97 S.Ct. at 2585, n. 39: “It would not be fruitful for us to reexamine the facts of cases decided on the rationales of Pennoyer and Harris [v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023] to determine whether jurisdiction might have been sustained under the standard we adopt today. To the extent that prior decisions are inconsistent with this standard, they are overruled.” (Emphasis added.) The noted prior decisions are those which the Court discussed in its historical development of the “consent” and “presence” theories of jurisdiction, the “patchwork of legal and factual fictions that has been generated from the decision in Pennoyer v. Neff.” Shaffer, supra, 433 U.S. 186, 97 S.Ct. at 2588 (Brennan, J.) Whether established by “doing business,” “express or implied consent,” or by physical fact, presence is therefore neither necessary nor always sufficient as a basis to support the exercise of jurisdiction. See Schreiber v. Allis-Chalmers Corp., 448 F.Supp. 1079, 1089 (D.Kan.1978); also, Casad, Shaffer v. Heitner, An End to Ambivalence in Jurisdiction Theory?, 26 Kan.L.Rev. 61, 77 (1977). After Shaffer, therefore, satisfaction of the constitutional criteria is not automatic when service is authorized by a “doing business” or “consent” statute. Even if a non-resident is found" }, { "docid": "23008761", "title": "", "text": "the attachment procedure sanctioned by the New York Court of Appeals in Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966). In that case the plaintiff, a New York resident, was involved in an automobile accident in Vermont with a resident of Canada. The court held that the plaintiff could obtain quasi-in-rem jurisdiction in New York by attaching an automobile insurance liability policy issued in Canada by an insurance company which was doing business, and hence minimally present, in New York. The court reasoned that the obligation of the insurer to defend and indemnify was a debt which could be attached wherever the debtor could be found. It reconsidered the problem in light of a constitutional objection in Simpson v. Loehmann, 21 N.Y.2d 305, 310-11, 287 N.Y.S.2d 633, 636-37, 234 N.E.2d 669, 671 (1967), and relying on Harris v. Balk held the procedure to be constitutional. In Minichiello v. Rosenberg, 410 F.2d 106 (2d Cir. 1968), aff’d on rehearing en banc, 410 F.2d 117, cert. denied, 396 U.S. 844, 90 S.Ct. 69, 24 L.Ed.2d 94 (1969), the Seider v. Roth quasi-in-rem procedure came before the Second Circuit. Judge Friendly noted that the Seider decision had judicially created a direct action statute. Analyzing the interests and contacts involved, he concluded that the Supreme Court probably would uphold such a statute enacted for the benefit of New York residents, or for the benefit of non-residents injured in New York. 410 F.2d at 110. On rehearing en banc, Judge Friendly dealt directly with the due process issue arising from the exercise of quasi-in-rem jurisdiction. He concluded that the exercise of such jurisdiction was justified by Harris v. Balk. Three judges dissented, distinguishing Harris v. Balk, and urging that there were insufficient New York contacts to sustain jurisdiction. See 410 F.2d at 113-17 (Anderson, J., dissenting from the panel decision), and 410 F.2d at 120-22 (Anderson, Lumbard and Moore, JJ., dissenting from the en banc decision). The majority opinions in Minichiello, however, rest at least in part on the fact that the Seider procedure is available only for New York" }, { "docid": "22630118", "title": "", "text": "of Shaffer v. Heitner, 433 U. S. 186 (1977). 433 U. S. 902 (1977). On remand, the Minnesota Supreme Court held that the assertion of quasi in rem jurisdiction through garnishment of an insurer’s obligation to an insured complied with the due process standards enunciated in Shaffer. 272 N. W. 2d 888 (1978) (Savchuk II). The court found that the garnishment statute differed from the Delaware stock sequestration procedure held unconstitutional in Shaffer because the garnished property was intimately related to the litigation and the garnishment procedure paralleled the asserted state interest in “facilitating recoveries for resident plaintiffs.” 272 N. W. 2d, at 891. This appeal followed. II The Minnesota Supreme Court held that the Minnesota garnishment statute embodies the rule stated in Seider v. Roth, 17 N. Y. 2d 111, 216 N. E. 2d 312 (1966), that the contractual obligation of an insurance company to its insured under a liability insurance policy is a debt subject to attachment under state law if the insurer does business in the State. Seider jurisdiction was upheld against a due process challenge in Simpson v. Loehmann, 21 N. Y. 2d 305, 234 N. E. 2d 669 (1967), reargument denied, 21 N. Y. 2d 990, 238 N. E. 2d 319 (1968). The New York court relied on Harris v. Balk, 198 U. S. 215 (1905), in holding that the presence of the debt in the State was sufficient to permit quasi in rem jurisdiction over the absent defendant. The court also concluded that the exercise of jurisdiction was permissible under the Due Process Clause because, “ [v] iewed realistically, the insurer in a case such as the present is in full control of the litigation” and “where the plaintiff is a resident of the forum state and the insurer is present in and regulated by it, the State has a substantial and continuing relation with the controversy.” Simpson v. Loehmann, supra, at 311, 234 N. E. 2d, at 672. The United States Court of Appeals for the Second Circuit gave its approval to Seider in Minichiello v. Rosenberg, 410 P. 2d 106, adhered to" }, { "docid": "22159318", "title": "", "text": "the liability of the partnership would establish the joint and several liability of each individual partner, see Fla.Stat. § 620.63 (1989); Cal.Corp. Code § 15015 (1977), jurisdiction over the partnership establishes jurisdiction over the partners. The Shers are wrong. Liability and jurisdiction are independent. Liability depends on the relationship between the plaintiff and the defendants and between the individual defendants; jurisdiction depends only upon each defendant’s relationship with the forum. See Shaffer v. Heitner, 433 U.S. 186, 204 & n. 19, 97 S.Ct. 2569, 2579 n. 19, 53 L.Ed.2d 683 (1977). Regardless of their joint liability, jurisdiction over each defendant must be established individually. This is the rule of Rush v. Savchuk, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980). In that case, Savchuk sued Rush in Minnesota for an automobile accident that occurred in Indiana. Rush had no ties to Minnesota, but Rush’s insurance carrier, State Farm, who was obligated to indemnify Rush for any liability from the accident, had sufficient jurisdictional contacts in Minnesota. The Minnesota Supreme Court aggregated the contacts of the “defending parties” and thereby found sufficient contacts to establish jurisdiction over Rush. The United States Supreme Court reversed, holding that “[s]uch a result is plainly un-constitutional_ The requirements of International Shoe ,.. must be met as to each defendant.” Id. at 331-32, 100 S.Ct. at 578-79. That State Farm and Rush were both potentially liable did not allow the imputation of jurisdictional contacts from one to the other. The partners here stand in relation to the partnership exactly as State Farm stood relative to Rush: they have potential liability, but they are independent for jurisdictional purposes. The Judicial Council of California also recognizes the independence of liability and jurisdiction. In its commentary to California’s personal jurisdiction statute, the Council discusses cases like this one: A judgment rendered against [a] partnership or association will bind the joint property or assets. But a judgment may not be rendered against a partner or member individually unless he is subject to the jurisdiction of the state on one [or] more of the currently recognized bases [of jurisdiction" }, { "docid": "1277128", "title": "", "text": "litigation. The principal concern of the insurer is to protect its own ‘contingent’ liability under the contract. As a general proposition, the law of this state rejects this legal fiction, recognizing that the insurer is the real party in interest and that the insured is a mere nominal party. When utilized to completely defeat the causes of action of injured Wisconsin plaintiffs, the legal fiction created by no-action clauses becomes too onerous to enforce in good conscience. Thus, aside from the equitable consideration presented by this case, precluding the insurance company’s assertion of the no-action clause is compelled by a realistic and reasonable evaluation of the respective rights of the plaintiffs, defendants, and the State of Wisconsin. The interest of the State of Wisconsin in facilitating recovery of residents injured in automobile accidents is not lessened by the fact that the accident occurred out of state. Therefore, a recognition of realities, rather than fictions, dictates the conclusion that this action is maintainable against Guaranty National, notwithstanding its no-action clause.” (Footnote omitted) See, similarly, Barrios v. Dade County, S.D.N.Y.1970, 310 F.Supp. 744. It is concluded that Shaffer does not require rejection of Seider v. Roth and Simpson. The jurisdiction exercised under those cases is one in favor of residents only, is available only against insurers suable in the state, requires giving adequate notice to the insured, and, in all probability, the judgment rendered in such a suit does not prejudice the named defendant’s right to relitigate the issues of liability and damages if he is sued again for the amount in excess of that recovered in the suit based on the Seider v. Roth attachment; and there remains the caution that the procedure may not be used as the means of obtaining a preference in the distribution of inadequate coverage in cases involving multiple claims and claimants. See Miniehiello v. Rosenberg, supra; Farrell v. Piedmont Aviation, Inc., supra. Sustaining the jurisdiction in the present case does not offend the policy considerations underlying Shaffer and preserves the anonymity of the defending insurance company in keeping with the policy of those states, which," }, { "docid": "23008763", "title": "", "text": "resident plaintiffs or for New York accidents. These limitations were confirmed in Farrell v. Piedmont Aviation, Inc., 411 F.2d 812, 816-17 (2d Cir.), cert. denied, 396 U.S. 840, 90 S.Ct. 103, 24 L.Ed.2d 91 (1969). Judge Friendly noted that without these limitations the Seider procedure would be of doubtful constitutionality and that “[t]he constitutional doubt arises from New York’s lack of meaningful contact with the claim . . . .” 411 F.2d at 817. Cf. United States v. First National City Bank, 379 U.S 378, 381, 85 S.Ct. 528, 13 L.Ed.2d 365 (1965), in which the Court, sustaining exercise of quasi-in-rem jurisdiction, noted that the result might have been different if the defendant whose account in Citibank had been attached had not also been subject to in personam jurisdiction under the New York long arm statute. Quite clearly, the Second Circuit in Farrell rejected the view that the presence of a debtor within the jurisdiction is sufficient, without other minimum contacts, to sustain a compelled general appearance by use of a quasi-in-rem attachment. As developed in Part V of this opinion, I disagree with the Second Circuit that the plaintiff’s residence is by itself sufficient to meet fourteenth amendment fairness requirements in the foreign attachment context. IV. As discussed above, the principal authority for the foreign attachment in this case is Harris v. Balk, which permitted attachment of a debt owing creditor in the jurisdiction in which the debtor was found. The predicate for the exercise of quasi-in-rem jurisdiction in that case was the fictional assignment of the situs of the debt to the location of the debtor. Pennsylvania has perpetuated the fictional assignment of a situs to intangible property in its foreign attachment procedures. Pa.R.Civ.P. 1260(b) provides that “A mortgage owned by a defendant may be attached by serviiig as garnishee the owner of the real property subject thereto.” The question is whether the due process clause is satisfied when a fictional situs is substituted for minimum contacts analysis as a basis for justifying exercises of raw judicial power. I think it is plain that due process is not" }, { "docid": "22630117", "title": "", "text": "of obtaining quasi in rem jurisdiction when the incident giving rise to the action occurs outside Minnesota but the plaintiff is a Minnesota resident when the suit is filed. Second, the court held that the assertion of jurisdiction over Rush was constitutional because he had notice of the suit and an opportunity to defend, his liability was limited to the amount of the policy, and the garnishment procedure may be used only by Minnesota residents. The court expressly recognized that Rush had engaged in no voluntary activity that would justify the exercise of in per-sonam jurisdiction. The court found, however, that considerations of fairness supported the exercise of quasi in rem jurisdiction because in accident litigation the insurer controls the defense of the case, State Farm does business in and is regulated by the State, and the State has an interest in protecting its residents and providing them with a forum in which to litigate their claims. Rush appealed to this Court. We vacated the judgment and remanded the cause for further consideration in light of Shaffer v. Heitner, 433 U. S. 186 (1977). 433 U. S. 902 (1977). On remand, the Minnesota Supreme Court held that the assertion of quasi in rem jurisdiction through garnishment of an insurer’s obligation to an insured complied with the due process standards enunciated in Shaffer. 272 N. W. 2d 888 (1978) (Savchuk II). The court found that the garnishment statute differed from the Delaware stock sequestration procedure held unconstitutional in Shaffer because the garnished property was intimately related to the litigation and the garnishment procedure paralleled the asserted state interest in “facilitating recoveries for resident plaintiffs.” 272 N. W. 2d, at 891. This appeal followed. II The Minnesota Supreme Court held that the Minnesota garnishment statute embodies the rule stated in Seider v. Roth, 17 N. Y. 2d 111, 216 N. E. 2d 312 (1966), that the contractual obligation of an insurance company to its insured under a liability insurance policy is a debt subject to attachment under state law if the insurer does business in the State. Seider jurisdiction was upheld against" }, { "docid": "14329307", "title": "", "text": "two of Maryland. The defendants are Lanseair, Rapidair, Piedmont, Boeing and the United States. Lanseair and Rapidair are Missouri corporations not subject to in personam jurisdiction in New York. Piedmont and Boeing, also foreign corporations, apparently were. Since they do not have their principal places of business in New York or in the states of residence of any of the decedents, there was diversity as between the plaintiffs and the corporate defendants even if it be proper to go behind the citizenship of the administrators, as recently held in McSparran v. Weist, 402 F.2d 867 (3 Cir. 1968), cert. denied, 395 U.S. 903, 89 S.Ct. 1739, 23 L.Ed.2d 217 (1969). Jurisdiction over the claim against the United States was conferred by 28 U.S.C. § 1346(b). Plaintiffs’ problem was how to acquire jurisdiction in New York with respect to Lanseair and Rapidair. They sought to meet it by availing themselves of Seider v. Roth and attaching the liability insurance policies issued to Lanseair and Rapidair respectively by Federal Insurance Company and St. Paul Fire and Marine Insurance Company, both doing business in New York. Lanseair, Rap-idair and the two insurers responded with motions to vacate the attachments and to dismiss the action against the two defendants. In addition to challenging the basic constitutionality of Seider v. Roth, they asserted that the procedure was inapplicable to an action in which the true beneficiaries were non-residents. Motions were also made by Piedmont and the United States under 28 U.S.C. § 1404(a) to transfer the action to the Western District of North Carolina, where many other suits arising out of the accident are pending. On November 27, 1968, Judge Wyatt granted both sets of motions; on December 2 and 10, 1968, the clerk entered judgments dismissing the complaint as against Rapid-air and Lanseair, respectively. Another panel of this court has declined to interfere with the order of transfer, Farrell v. Wyatt, 408 F.2d 662 (2 Cir. 1969). The instant appeals are from the vacating orders and the judgments of dismissal. At the outset we note and reject a challenge to our appellate jurisdiction. Lanseair" }, { "docid": "22630138", "title": "", "text": "“functional equivalent” of a so-called direct-action statute. The impact of the judgment is against the insurer. I believe such a direct-action statute is valid as applied to a suit brought by a forum resident, see Watson v. Employers Liability Assurance Corp., 348 U. S. 66, 72, even if the accident giving rise to the action did not occur in the forum State, see Minichiello v. Rosenberg, 410 F. 2d 106 (CA2 1968), cert. denied, 396 U. S. 844, so long as it is understood that the forum may exercise no power whatsoever over the individual defendant. As so understood, it makes no difference whether the insurance company is sued in its own name or, as Minnesota law provides, in the guise of a suit against the individual defendant. In this case, although appellant Rush may have a contractual obligation to his insurer to appear in court to testify and generally to cooperate in the defense of the lawsuit, it is my understanding that Minnesota law does not compel him to do so through the contempt power or otherwise. Moreover, any judgment formally entered against the individual defendant may only be executed against the proceeds of his insurance policy. In my opinion, it would violate the Due Process Clause to make any use of such a judgment against that individual — for .example, by giving the judgment collateral-estoppel effect in a later action against him arising from the same accident. Accord, Minichiello v. Rosenberg, supra, at 112; Note, The Constitutionality of Seider v. Roth after Shaffer v. Heitner, 78 Colum. L. Rev. 409, 418-419 (1978). But we are not now faced with any problem concerning use of a quasi in rem judgment against an individual defendant personally. I am therefore led to the conclusion that the Federal Constitution does not require the Minnesota courts to dismiss this action. It seems to me that the possible impact of a default judgment on the reputation of an individual, see ante, at 331, n. 20, who has no contacts whatever with the forum State is far too remote to affect the analysis of the" }, { "docid": "23008762", "title": "", "text": "69, 24 L.Ed.2d 94 (1969), the Seider v. Roth quasi-in-rem procedure came before the Second Circuit. Judge Friendly noted that the Seider decision had judicially created a direct action statute. Analyzing the interests and contacts involved, he concluded that the Supreme Court probably would uphold such a statute enacted for the benefit of New York residents, or for the benefit of non-residents injured in New York. 410 F.2d at 110. On rehearing en banc, Judge Friendly dealt directly with the due process issue arising from the exercise of quasi-in-rem jurisdiction. He concluded that the exercise of such jurisdiction was justified by Harris v. Balk. Three judges dissented, distinguishing Harris v. Balk, and urging that there were insufficient New York contacts to sustain jurisdiction. See 410 F.2d at 113-17 (Anderson, J., dissenting from the panel decision), and 410 F.2d at 120-22 (Anderson, Lumbard and Moore, JJ., dissenting from the en banc decision). The majority opinions in Minichiello, however, rest at least in part on the fact that the Seider procedure is available only for New York resident plaintiffs or for New York accidents. These limitations were confirmed in Farrell v. Piedmont Aviation, Inc., 411 F.2d 812, 816-17 (2d Cir.), cert. denied, 396 U.S. 840, 90 S.Ct. 103, 24 L.Ed.2d 91 (1969). Judge Friendly noted that without these limitations the Seider procedure would be of doubtful constitutionality and that “[t]he constitutional doubt arises from New York’s lack of meaningful contact with the claim . . . .” 411 F.2d at 817. Cf. United States v. First National City Bank, 379 U.S 378, 381, 85 S.Ct. 528, 13 L.Ed.2d 365 (1965), in which the Court, sustaining exercise of quasi-in-rem jurisdiction, noted that the result might have been different if the defendant whose account in Citibank had been attached had not also been subject to in personam jurisdiction under the New York long arm statute. Quite clearly, the Second Circuit in Farrell rejected the view that the presence of a debtor within the jurisdiction is sufficient, without other minimum contacts, to sustain a compelled general appearance by use of a quasi-in-rem attachment. As developed" }, { "docid": "1277113", "title": "", "text": "For jurisdictional purposes, in assessing fairness under the due process clause and in determining the public policy of New York, such factors loom large. “The position taken by some who disagree with Seider would require that, as a matter of State policy, insurance be explicitly eliminated as the basis for the exercise of our in rem jurisdiction but this represents a judgment requiring data and information with respect to the practical effect of the Seider decision not presently available to this court.” The language adumbrates Shaffer; it rests, as does Shaffer, on International Shoe. Judge Keating, concurring in the result, observed that the insurer in such a policy, must defend in any state in which the insured is involved in an accident, including direct action states — such as Louisiana. After speaking of the interest of direct action states in the lot of its residents injured in accidents occurring in the direct action state, Judge Keating continued “Similar State interests, it seems to me, would sustain a direct action against the insurer in this jurisdiction if the Legislature had authorized such actions, even though the action could not have been brought directly in the State in which the accident took place. Although no direct action statute is presently in effect, I see no policy reason for not holding that service of process on the real party defendant — the insurer — is sufficient to compel it to defend in this State, provided it transacts business here and is thus subject to the jurisdiction of our courts. “This court has on a number of occasions given effect to the strong State interest in facilitating recovery of persons injured in automobile accidents. The fact that the injury occurs outside of this State does not, of course, lessen that interest. (Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279; Macey v. Rozbicki, 18 N.Y.2d 289, 292,274 N.Y.S.2d 591, 221 N.E.2d 380 [concurring opn.].) “Likewise, we have on a number of occasions recognized that the real party in interest is the insurer and we have given effect to the fiction sought" }, { "docid": "22630120", "title": "", "text": "en banc, 410 F. 2d 117 (1968), cert. denied, 396 U. S. 844 (1969), although on a slightly different rationale. Judge Friendly construed Seider as “in effect a judicially created direct action statute. The insurer doing business in New York is considered the real party in interest and the nonresident insured is viewed simply as a conduit, who has to be named as a defendant in order to provide a conceptual basis for getting at the insurer.” 410 F. 2d, at 109; see Donawitz v. Danek, 42 N. Y. 2d 138, 142, 366 N. E. 2d 253, 255 (1977). The court held that New York could constitutionally enact a direct action statute, and that the restriction of liability to the amount of the policy coverage made the policyholder’s personal stake in the litigation so slight that the exercise of jurisdiction did not offend due process. New York has continued to adhere to Seider New Hampshire has followed Seider if the defendant resides in a Seider jurisdiction, but not in other cases. Minnesota is the only other State that has adopted Sender-type jurisdiction. The Second Circuit recently reaffirmed its conclusion that Seider does not violate due process after reconsidering the doctrine in light of Shaffer v. Heitner. O’Conner v. Lee-Hy Paving Corp., 579 F. 2d 194, cert. denied, 439 U. S. 1034 (1978). Ill In Shaffer v. Heitner we held that “all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.” 433 U. S., at 212. That is, a„State may exercise jurisdiction over an absent defendant only if the defendant has “certain minimum contacts with [the forum]' such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U. S. 310, 316 (1945). In determining whether a particular exercise of state-court jurisdiction is consistent with due process, the inquiry must focus on “the relationship among the defendant, the forum, and the litigation.” Shaffer v. Heitner, supra, at 204. It is conceded that Rush has never had any" }, { "docid": "1693018", "title": "", "text": "matter jurisdiction existed, he remanded the case to Judge Lasker in the Southern District of New York. Judge Lasker held on December 18, 1979, that under New York conflicts of laws principles the New Jersey charitable limitation would not apply to suits brought by New York residents, and accordingly declined to dismiss for lack of subject matter jurisdiction. 482 F.Supp. 629. Meanwhile the Supreme Court was reconsidering the legitimacy of quasi-in-rem jurisdiction in general, and of Seider -type attachment jurisdiction in particular. When Mrs. Holzsager first brought this suit in 1976, the constitutional legitimacy of Seider jurisdiction was established in this Circuit, Minichiello v. Rosenberg, 410 F.2d 106 (2d Cir. 1968) (en banc), cert. denied, 396 U.S. 949, 90 S.Ct. 370, 24 L.Ed.2d 254 (1969), and in New York State, Victor v. Lyon Associates, Inc., 21 N.Y.2d 695, 287 N.Y.S.2d 424, 234 N.E.2d 459 (1967). At the same time, the rule had met with considerable criticism. See sources cited in Donawitz v. Danek, 42 N.Y.2d 138, 141-42, 397 N.Y.S.2d 592, 366 N.E.2d 253 (1977), and in Minichiello v. Rosenberg, supra, 410 F.2d at 108. On June 24, 1977, the Supreme Court decided Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), applying minimum contacts analysis to quasi-in-rem jurisdiction for the first time. Then, after this Court had declared Seider’s constitutionality unaffected by Shaffer in O’Connor v. Lee-Hy Paving Corp., 579 F.2d 194 (2d Cir.), cert. denied, 439 U.S. 1034, 99 S.Ct. 638, 58 L.Ed.2d 696 (1978), the Supreme Court declared Seider -type attachments unconstitutional in Rush v. Savchuk, supra. Shortly after Rush was decided, the Hospital moved to dismiss this case for lack of personal jurisdiction. Judge Lasker denied this motion. Though he agreed with the Hospital that it was not precluded by waiver, estoppel or consent from raising objections to the court’s jurisdiction over its person, he concluded that Rush should not be applied retroactively to eliminate the court’s personal jurisdiction over the Hospital. He then certified both the waiver issue and the retroactivity issue to this court pursuant to 28 U.S.C. § 1292(b). DISCUSSION" }, { "docid": "1277112", "title": "", "text": "the State in terms of fairness. (See, e. g., International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68.) Such an evaluation requires a practical appraisal of the situation of the various parties rather than an emphasis upon somewhat magical and medieval concepts of presence and power. Viewed realistically, the insurer in a case such as the present is in full control of the litigation; it selects the defendant’s attorneys; it decides if and when to settle; and it makes all procedural decisions in connection with the litigation (See, e. g., Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 167, 278 N.Y.S.2d 793, 225 N.E.2d 503.) Moreover, where the plaintiff is a resident of the forum state and the insurer is present in and regulated by it, the State has a substantial and continuing relation with the controversy. For jurisdictional purposes, in assessing fairness under the due process clause and in determining the public policy of New York, such factors loom large. “The position taken by some who disagree with Seider would require that, as a matter of State policy, insurance be explicitly eliminated as the basis for the exercise of our in rem jurisdiction but this represents a judgment requiring data and information with respect to the practical effect of the Seider decision not presently available to this court.” The language adumbrates Shaffer; it rests, as does Shaffer, on International Shoe. Judge Keating, concurring in the result, observed that the insurer in such a policy, must defend in any state in which the insured is involved in an accident, including direct action states — such as Louisiana. After speaking of the interest of direct action states in the lot of its residents injured in accidents occurring in the direct action state, Judge Keating continued “Similar State interests, it seems to me, would sustain a direct action against the insurer in this jurisdiction" }, { "docid": "22630136", "title": "", "text": "pocket. Moreover, the purpose of insurance is simply to make the defendant whole for the economic costs of the lawsuit; but noneconomic factors may also be important to the defendant. Professional malpractice actions, for example, question the defendant's integrity and competence and may affect his professional standing. Cf. Donawitz v. Danek, 42 N. Y. 2d 138, 366 N. E. 2d 253 (1977) (medical malpractice action premised on Beider jurisdiction dismissed because plaintiff was a nonresident). Further, one can easily conceive of cases in which the defendant might have a substantial economic stake in Beider litigation — if, for example, multiple plaintiffs sued in different States for an aggregate amount in excess of the policy limits, or if a successful claim would affect the policyholder’s insurability. For these reasons, the defendant’s interest in the adjudication of his liability cannot reasonably be characterized as de minimis. The court stated: “We view as relevant tbe relationship between the defending parties, the litigation, and the forum state. It cannot be said that Minnesota lacks such minimally-requisite 'contacts, ties or relations’ to those defending parties as to offend the requirements of due process.” Savchuk II, 272 N. W. 2d, at 893 (emphasis added). See, e. g., Farrell v. Piedmont Aviation, Inc., 411 F. 2d 812 (CA2 1969); Rintala v. Shoemaker, 362 F. Supp. 1044 (Minn. 1973); Donaivitz v. Danek, supra; Savchuk I. Mr. Justice Stevens, dissenting. As the Court notes, appellant Rush had no contact with Minnesota that would support personal jurisdiction over him in that State. Ante, at 322. Moreover, Shaffer v. Heitner, 433 U. S. 186, precludes the assertion of quasi in rem jurisdiction over his property in that forum if the intangible property attached is unrelated to the action. It does not follow, however, that the plaintiff may not obtain quasi in rem jurisdiction over appellant’s insurance policy, since his carrier does business in Minnesota and since it has also specifically contracted in the policy attached to defend the very litigation that plaintiff has instituted in Minnesota. In this kind of case, the Minnesota statute authorizing jurisdiction is correctly characterized as the" } ]

[ { "docid": "11572054", "title": "", "text": "the “Murphy” mentioned in the tape is his present trial attorney. He further states that he had gone over the situation with his attorneys, and was aware that if he so desired the court would appoint a qualified attorney to replace Murphy. Nevertheless, in the affidavit, Levine insists on retaining Murphy and waives the right to raise the issue on appeal, or in any collateral proceeding, and further waives any defense or objection which might arise from the conflict stemming from Murphy’s alleged involvement in the indictment’s allegations. The government responded with a request that Levine be placed under oath and the matter further explored on the record. Judge Shadur, without objection from Levine or his attorneys, proceeded to place Levine under oath. As a prologue, Judge Shadur advised Levine that he was going to assume just for purposes of the hearing that Murphy may have engaged in unlawful conduct in connection with the charges against Levine. The judge then explained to Levine the possibility that Levine could use for his own benefit any information that he might have about the unlawful conduct of others which might be of interest and use to the government. It was suggested that cooperation with the government might reduce the pending counts, influence a sentencing recommendation if he were to be convicted, or be used to negotiate a plea. Levine said he understood the possibilities. Judge Shadur then queried Levine if he understood that he could not later claim that the conflict of interest prejudiced his defense because, as the judge put it, “Mr. Murphy’s interest would be inconsistent with your own [due to] his own instincts for self-preservation.” It was also explained to Levine that he could not later complain that because of the conflict he had not had “the undivided loyalty that is required of every lawyer representing every client.” It was further explained that a lawyer’s judgment in the present circumstances might be colored by a desire not to have his own conduct exposed. It was also explained that it could influence trial decisions, for example, whether to testify, and what" } ]

[ { "docid": "9590277", "title": "", "text": "for a fee, Clark is apparently not one of these lawyers, at least if we may judge from the judge’s accusation of ingratitude. After the judge’s pretrial outburst Clark knew that he would have to be on his best behavior at trial if he was to have any hope of a subsequent appointment by Judge Ser-aphim — and perhaps if he was to have any hope of getting paid for defending Wal-berg. And Judge Seraphim had indicated that good behavior meant not just avoiding unethical conduct but also not pressing too hard, even well within ethical boundaries, in favor of an obviously guilty defendant. Although there is no proof that Clark pulled his punches at trial, he had every incentive to do so. He had a conflict of interest, not between two clients having conflicting defenses but between his client and himself. They had conflicting incentives — Walberg to get off by any means, Clark to preserve so far as possible his relationship with a judge who regarded himself, apparently with some basis, as Clark’s benefactor. Of course it is implicit in any system where trial judges appoint counsel who receive fees — indeed in any system where judges rule on attorney’s fees, whether or not the judge appointed counsel — that counsel has an economic incentive to comply with the judge’s wishes, and this may at times create a division of loyalties. We do not for a moment suggest that a lawyer appointed under such a system is therefore incapable of representing his client in a constitutionally adequate fashion. But in extreme cases a fatal conflict of interest may arise. Suppose Judge Seraphim had told Clark that if he defended Walberg vigorously he would never get another appointment. Such a threat would entitle Walberg to a new trial regardless of whether a vigorous defense could have gotten him off. The judge did not go quite so far, but he went far. He accused Clark of ingratitude; he made a thinly veiled threat not to approve Clark’s fee request at the end of the trial; he reminded Clark of Clark’s" }, { "docid": "23370495", "title": "", "text": "office. Armienti alleges numerous instances of specific deficiencies that he argues were the product of the conflict. Among these are his lawyer’s failure to conduct further investigation, failure to vigorously cross-examine the government’s witnesses, and failure to make various objections. Armienti also alleges that his lawyer’s own criminal investigation caused him to devote less time to his representation of Armienti and to be ill-prepared and distracted at trial. And Armienti alleges that his lawyer misadvised him not to talk to the probation department at the time of his sentencing. A lawyer in these circumstance, while dealing on behalf of his client with the office that is prosecuting him personally may, consciously or otherwise, seek the goodwill of the office for his own benefit. A lawyer’s attempt to seek the goodwill of the prosecutor may not always be in the best interest of the lawyer’s client. We therefore conclude that Armienti made a sufficient showing to require the district court to hold an evidentiary hearing to determine whether there was an actual conflict of interest and, if so, whether the conflict adversely affected his lawyer’s performance. See Briguglio v. United States, 675 F.2d 81, 82 (3d Cir.1982) (holding that where trial counsel was under investigation by same United States Attorney’s office that was prosecuting counsel’s client, evidentiary hearing was required to determine if “counsel labored under an actual conflict of interest, whether any such conflict may have affected the adequacy of his representation, or whether [the client] was prejudiced by his counsel’s difficulties.”); see also United States v. McLain, 823 F.2d 1457, 1463-64 (11th Cir.1987) (holding that when trial counsel was under investigation by same United States Attorney’s office that was prosecuting counsel’s client, under circumstances presented, an actual conflict of interest existed); cf. Levy, 25 F.3d at 156 (holding that a conflict based on the attorney’s status as a defendant in an unrelated criminal proceeding amounted to an actual conflict of interest). These issues implicate actions taken by counsel outside the presence of the trial judge and therefore could not ordinarily be resolved by him without such a hearing. “[T]he" }, { "docid": "1273401", "title": "", "text": "allege or present evidence concerning any other instances, before or during the trial, in which the judge gave the jury any impression of bias. The judge’s subsequent impartial conduct itself acted as a powerful remedy to any improper impression the jury might have formed during voir dire. The judge’s curative admonition and subsequent impartial conduct were sufficient to prevent the jury from forming an “abiding impression” of “advocacy or partiality.” United States v. Laurins, 857 F.2d 529, 537 (9th Cir.1988), cert. denied, 492 U.S. 906, 109 S.Ct. 3215, 106 L.Ed.2d 565 (1989). AFFIRMED. . The content of the \"waiver\" colloquy was limited to the court ascertaining (1) that Maiden knew Randall had \"resulted in you being sent to state prison” in the earlier case, and (2) that Maiden nonetheless wanted to have Randall as his attorney. . Indeed, this problem would only arise in the reverse situation: where an attorney had represented a defendant in a prior trial, and had then become a prosecutor and prosecuted defendant in a second trial. Here, in contrast, the only \"inside” information possessed by Randall — i.e., his knowledge of the prosecutor's office — would have been, if anything, to Maiden’s advantage. . In Troné, a civil case, the court said that an attorney's professional commitment to zealous representation of her client “is not furthered, but endangered, if the possibility exists that the lawyer will change sides later in a substantially related matter.” Id. . We by no means endorse the practice of switching sides in criminal cases; we merely hold that it does not necessarily create a conflict of interest for constitutional purposes, and that it did not in fact do so here. The practice may well raise serious ethical problems for practitioners. See Annotated Model Rules of Professional Conduct, Rule 1.7, cmt. (1992) (“Loyalty is an essential element in the lawyer’s relationship to a client”); Hall, Professional Responsibility of the Criminal Lawyer 401 (1987) (\"ethic[s] rules prohibit any conflicts which could diminish or dilute a lawyer's loyalty and zeal in representing a client”). . California also argues that Maiden waived his Sixth" }, { "docid": "12734584", "title": "", "text": "charges against Judge McKay might have impermissibly biased the judge similarly fails to assert a valid ground for relief. His primary argument is that Judge McKay’s prosecution was conducted by “the same prosecuting authority” that prosecuted Getsy. In fact, however, a special prosecutor from neighboring Geau-ga County was brought in to conduct Judge McKay’s criminal proceedings. This distinguishes the cases cited by Getsy for the proposition that an attorney who is himself prosecuted by the same office that is prosecuting his client might be laboring under a conflict of interest. See, e.g., Thompkins v. Cohen, 965 F.2d 330, 332-33 (7th Cir.1992) (noting that the prosecution of an attorney by the same office that is prosecuting his client might give rise to a conflict, but finding that no constitutional violation had occurred in relation to the lawyer’s representation in that case). Again, Getsy points to nothing that suggests actual bias on the part of Judge McKay. The remote possibility that currying favor with Getsy’s prosecutor would somehow help the judge in dealing with the special prosecutor in his own case does not present a ground that a reasonable observer would believe improperly influenced Judge McKay’s decisions in Getsy’s trial. Williams, 460 F.3d at 813 (noting that due process “prohibits a defendant from being tried before a judge whose ‘substantial’ and ‘direct’ interests may be furthered by the outcome of the trial”). The only specific example Getsy cites of a trial decision allegedly influenced by bias is Judge McKay’s decision to accept the jury’s recommendation and impose the death sentence. But the jury convicted Getsy of three capital specifications, any one of which could legally have supported the sentence imposed. Moreover, the record reflects that Judge McKay accepted the jury’s recommendation and imposed the death sentence after his own plea and sentencing for the DUI charges were completed. Even under Get-sy’s conflicLof-interest theory, therefore, this decision would have been untainted. We recognize that Judge McKay’s conduct in becoming intoxicated at a picnic attended by assistant prosecutor Rice and then driving while impaired exhibited poor decisionmaking. These actions, however, are distinct in character" }, { "docid": "11125077", "title": "", "text": "persuaded that, even without proof of an actual conflict of interest, legitimate decisions of counsel were rendered suspect because of the potential for conflicting loyalties to himself and his client....” Id. at 137 (emphasis added). The case law today, however, requires Baker to demonstrate an actual conflict. Moreover, DeFalco specifically relied on the “totality of the circumstances” with which the court was presented, including: the facts that DeFalco’s appeal emanated from the same district court in which his attorney was indicted, that three of his attorney’s indictments were processed, prior to the striking of the plea bargain, before the same district judge who presided over DeFalco’s trial, that the same United States Attorney’s office prosecuted DeFalco and his lawyer, and that [counsel] entered into plea bargaining during the pendency of DeFalco’s appeal with the same United States Attorney’s office that constituted his adversary on appeal.... Id. at 136-37 (emphasis added). Other circuits that have found an actual conflict under analogous circumstances have also emphasized the fact that the same office was prosecuting or investigating both the attorney and client. See, e.g., Levy, 25 F.3d at 156 (2d Cir.1994) (finding actual conflict for several reasons, including attorney’s prosecution on unrelated charges by same office prosecuting defendant); Thompkins v. Cohen, 965 F.2d 330, 332 (7th Cir.1992) (presuming that an actual conflict may arise when defendant’s lawyer is under criminal investigation by the same prosecutor’s office, but finding no adverse effect); United States v. McLain, 823 F.2d 1457, 1463-64 (11th Cir.1987) (finding actual conflict where attorney was under investigation by the same United States Attorney’s office prosecuting the defendant and attorney had interest in prolonging the trial to delay his own indictment), overruled on other grounds as recognized by United States v. Watson, 866 F.2d 381, 385 n. 3 (11th Cir.1989). Here, however, Malo-ney was convicted in an unrelated matter in the Southern District of New York, while Baker was appealing from his conviction in the Central District of California. We thus hold that Baker’s bare allegation of a conflict based solely on Maloney’s cooperation and plea on unrelated charges in another federal" }, { "docid": "7345045", "title": "", "text": "that burdened its representation of Freund. As described in part II.C., a third conflict arose after the firm began to represent Freund that exacerbated this burden. Part III then returns to our precedents interpreting Cuyler and determines that none of these cases forecloses a finding that Freund’s lawyers, burdened as they were by these conflicts of interest, provided ineffective assistance to Freund. I. As both the panel and the majority have recognized, a habeas petitioner who claims that he was denied his Sixth Amendment right to the effective assistance of trial counsel because his lawyer had a conflict of interest must show “that [1] an actual conflict of interest [2] adversely affected his- lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980); accord Freund v. Butterworth, 117 F.3d 1543, 1571 (11th Cir.1997), vacated, 135 F.3d 1419 (11th Cir.1998). Our circuit’s interpretation of this standard has developed primarily in two traditional contexts: a lawyer’s “simultaneous representation” of clients with adverse interests, and a lawyer’s “successive representation” of a client against whom a former client appears as a witness. See, e.g., McConico v. Alabama, 919 F.2d 1543, 1546 (11th Cir.1990) (noting that a conflict of interest may arise in either context). The fact that these two types of conflicts arise most frequently does not mean, howev er, that these are the only two contexts in which a lawyer’s conflict of interest can deprive her client of the effective assistance of counsel. See, e.g., Zamora v. Dugger, 834 F.2d 956, 960-61 (11th Cir.1987) (noting that “the standard developed in Cuyler has been applied to cases in which defendants argue that their lawyers were more interested in publicity than in obtaining an acquittal”); United States v. McLain, 823 F.2d 1457, 1463 (11th Cir.1987) (finding Cuyler requirements met where lawyer faced possible prosecution by same United States Attorney’s office that was prosecuting his client); Zuck v. Alabama, 588 F.2d 436, 438-40 (5th Cir.1979) (concluding that lawyers who previously had represented the prosecutor who was prosecuting their current client had actual conflict of interest); see also Fitzpatrick v." }, { "docid": "9529153", "title": "", "text": "himself under investigation by the Attorney Registration and Disciplinary Commission of Illinois on account of money given to a judge. Tuite had prosecuted or defended many a case before judges who later were charged with taking bribes, e.g., Branion v. Gramly, 855 F.2d 1256 (7th Cir.1988), and was friendly with several. In 1982 he loaned $5,000 to Richard LeFevour, then Presiding Judge of the First Municipal Division of the Circuit Court, supposedly to help LeFevour pay his income taxes. LeFevour did not sign a note and did not repay until 1985, when he was indicted for taking bribes and wanted Tuite to defend him. (The defense was unsuccessful. United States v. LeFevour, 798 F.2d 977 (7th Cir.1986).) Even then LeFevour repaid without interest. Tuite had no cases before LeFevour. The Disciplinary Commission recommended that Tuite be censured for giving a judge a thing of value. Tuite’s defense was that he did not know it is forbidden to do so. Although finding that Tuite had violated Disciplinary Rule 7-110(A) (“A lawyer shall not give or lend any thing of value to a judge, official, or employee of a tribunal, except that a lawyer may make a contribution to the campaign fund of a candidate for such office.”), the Supreme Court of Illinois discharged him without sanction on the ground that the rule had not been authoritatively construed in earlier cases. In re Corboy, 124 Ill.2d 29, 124 Ill.Dec. 6, 528 N.E.2d 694 (1988). Roth contends that the investigation shows that Tuite may have had a reason to pull punches at the trial. If he was too vigorous, Roth contends, he might have annoyed the prosecutors; grouchy prosecutors might have wondered whether this loan was in reality a bribe, and started a criminal investigation of Tuite. Roth says that he detects signs of lackadaisical work in Tuite’s handling of the trial, and that in particular Tuite’s failure to call Roth as a witness in his own defense must be attributable to a conflict — either to avoid eliciting from Roth evidence that could damage other clients or to avoid the enmity of" }, { "docid": "155836", "title": "", "text": "motion seeking a determination regarding the extent of Mr. Fabbri’s conflict, the government stated it ”believe[d] that Attorney Fabbri has an actual, or at least a significant potential conflict of interest in representing Byron Blake.” Respondent-Appellee’s App’x at 1. We do not view that statement as a concession by the government that an actual conflict existed. We have previously held that in cases in which a defendant asserts that an investigation into the criminal activities of his counsel creates a conflict between the defendant’s interest in effective representation and the attorney’s interest in protecting himself from the investigation, an actual conflict arises \"only where there is a danger that [counsel] would ineffectively represent his client because of fear that authorities might become aware of the attorney’s own misconduct if he undertook effective representation.’ ” United States v. Balzano, 916 F.2d 1273, 1293 (7th Cir.1990). Here, the criminal activity for which Mr. Fabbri was being investigated was fully known to the government and wholly unrelated to the charges against Blake. Likewise, Mr. Fabbri's case was being investigated by a separate U.S. Attorney’s office under the direction of the Department of Justice. Thus, Mr. Fabbri would have had no basis on which to fear that in representing Blake in a case being prosecuted within the Southern District of Illinois he would provide the U.S. Attorney's office in the Central District additional evidence about his own misconduct, or that he was somehow incented to pull punches in Blake’s defense. . Blake also argues that he is entitled to the automatic reversal of his conviction or a remand for an evidentiary hearing under Holloway v. Arkansas, 435 U.S. 475, 484-91, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), because the district court knew or should have known about Mr. Fabbri’s conflict of interest and failed to adequately address it. See Holleman v. Cotton, 301 F.3d 737, 742 (7th Cir.2002) (“Under Holloway and Cuyler, a trial court has the duty to inquire adequately into a trial counsel’s conflict of interest if it knows or reasonably should know that a particular conflict exists.”). However, we have recognized" }, { "docid": "11707531", "title": "", "text": "to justify even under pre-Mickens decisions. After Hall was indicted, the Federal Defender’s office for the Southern District of Illinois assigned Lawrence Fleming to represent him. Fleming previously had furnished legal assistance to Gignac, and given the posture of these proceedings I must assume that Gignac might have been a witness had a trial been held — though the United States Attorney denies that Gignac would have been called, and he should know. (The prosecutor says that Gignac knows nothing material to the charge against Hall.) Hall’s theory is that Fleming strong-armed him to plead guilty in order to avoid the problem that would ensue if Gignac took the stand. This is implausible on its own terms. Why should Fleming have cared? The Federal Defender in the Southern District has five other lawyers on the staff. If the case had gone to trial, and the prosecutor had shown any inclination to call Gignac, Fleming could have turned the representation over to one of his colleagues. Hall proceeds as if Fleming had received a hefty fee that he feared having to return if required to withdraw. See Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir.1990) (“The pragmatic pressure on counsel in cases such as these is purely financial; the lawyer does not want to lose a client.”). Yet Fleming, as a public employee, had no financial stake and thus no reason other than his client’s best interests to urge Hall to plead guilty. Hall received a sentence of 37 months’ imprisonment, the bottom of the guideline range (itself reduced by the acceptance of responsibility that Hall now wants to repudiate). Five defendants were charged in the indictment. The others' — all represented by conflict-free counsel — likewise pleaded guilty. Two of these four entered pleas in advance of Hall’s and were available to testify against him; the remaining two pleaded guilty at the same time Hall did. If the four defendants with non-conflicted counsel had gone to trial (better, had gone to trial and won), while only Hall had capitulated, one might see a point; but given what actually" }, { "docid": "23530000", "title": "", "text": "a lawyer is justified in representing two or more clients having differing interests, it is nevertheless essential that each client be given the opportunity to evaluate his need for representation free of any potential conflict and to obtain other counsel if he so desires. Thus, before a lawyer may represent multiple clients, he should explain fully to each client the implications of the common representation and should accept or continue employment only if the clients consent.” Id. at EC 5-16. Johnson was under an ethical obligation to inform Sher of the investigation and the possibility that it would affect Johnson’s judgment while acting as Sher’s counsel. Moreover, we find that an actual conflict of interest did exist. This conflict manifested itself in Johnson’s benefit from Sher’s prolonged trial. There is substantial evidence that the United States attorney would not attempt to indict Johnson until Sher’s trial ended. Therefore, it was in Johnson's best interests for Sher to have a lengthy trial. Although Johnson testified that he was not worried about the investigation, his client, having hired Johnson for his sterling reputation would have reacted differently. Furthermore, the increased intensity of the government’s investigation of Johnson’s records should have convinced him of the seriousness of his situation and the conflict between his desires to aide his client and save himself. This actual conflict of interest adversely affected the competency of Johnson’s representation of Sher. Johnson’s competence was most lacking in the area of plea negotiations. Mr. Johnson admitted that he was informed by the United States investigators that Sher was the only defendant who had not tried to work out a deal with the government. (Transcript of Proceedings, March 31, 1986, p. 16, lines 18-25). Actually, Sher (through Johnson) had attempted a negotiated plea, however, the Middle District of Florida United States Attorney’s Office will negotiate pleas in racketeering cases only if the defendant agrees to testify against all co-defendants. Since Sher would not testify against co-defendant Cocchiaro for fear of harm to himself or his family, this negotiated plea fell through. We find that Johnson failed to press the fact" }, { "docid": "23570936", "title": "", "text": "his choice was motivated by any of these concerns and never requested the trial court to grant a continuance of the trial in order that he might retain a new attorney. Thus, based upon our perusal of the record, we are convinced that the trial court thoroughly explored the alleged conflict of interest based on the evidence presented, and it ill behooves Balzano to now fault the trial court for failing to ascertain his newly discovered alleged “hidden” motivations for his decision to continue to retain his trial counsel. Because Balzano failed to assert any of the reasons he now argues motivated his conduct, his failure certainly leaves a deep suspicion that these reasons were afterthoughts dreamed up for purposes of this appeal. Balzano was responsible for the trial court’s lack of knowledge of the alleged details of Balzano’s determination to continue to retain his trial counsel. Thus, Balzano is required to demonstrate that “an alleged conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348-49, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980). When a criminal defendant asserts that an investigation of the criminal activities of his attorney creates a conflict between the attorney’s interest in protecting himself from criminal investigation and the defendant’s interest in effective representation, we have held that an “actual conflict of interest” exists only where there is a danger that the defense attorney would ineffectively represent his client because of fear that authorities might become aware of the attorney’s own misconduct if he undertook effective representation. See Cerro v. United States, 872 F.2d 780, 785-86 (7th Cir.1989) (No actual conflict of interest where “[tjhere was no danger that authorities would learn something novel about [the attorney’s] possible involvement in criminal activities.... ”). Balzano’s trial attorney’s representation of Balzano on his extortion, RICO conspiracy and witness intimidation charges would not have affected his completely unrelated personal criminal tax investigation. Thus, we reject Balza-no’s contention that the facts demonstrated an actual conflict of interest resulting in ineffective assistance of counsel. Balzano goes on to argue that his attorney’s alleged 100-day fast" }, { "docid": "22966354", "title": "", "text": "of the lawyers and at least three of the witnesses themselves were targets of the grand jury investigation, and that there was thereby created a conflict of interest among them. The Court of Appeals further stated that none of the witnesses and neither of the attorneys had informed the court that each witness had been fully advised about the actual consequences of the conflict between his interest and that of the other witnesses and the one lawyer. The court, therefore, found the waivers were void. It declined to pass on whether Mr. Rosen would still have been disqualified if the waivers had been found to be valid. Mr. Whitehead’s disqualification was affirmed because of his own conflict of interest, as well as to avoid any appearance of unethical conduct, and to prevent a frustration of the grand jury proceeding. Mr. Rosen’s disqualification was also affirmed because he would have to act against the interests of some of his clients if he sought immunity on behalf of one of them in exchange for testimony before the grand jury. That situation most closely resembles the case presently before this court. Here, however, such conflict will not arise, because the Government has already taken the initiative and informed the witness Taylor that it plans to offer him immunity from prosecution in order to secure his testimony. At this point, therefore, the record does not disclose that there is any duty owed by Mr. Erlbaum to Taylor or any of his other clients, which he has not performed. The Government has in no way even suggested that Mr. Erlbaum may be a target of the investigation, whose self-interest in avoiding incrimination would interfere with his ability vigorously to pursue his clients’ best interests; nor is there any proof or offer of proof that his representation of appellant will impair the grand jury’s investigative function and deprive the public of the testimony of a witness. Cf. United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 38 L.Ed.2d 561 (1973). Moreover, we decline to adopt the Fourth Circuit’s position, insofar as it suggests that" }, { "docid": "7345046", "title": "", "text": "client against whom a former client appears as a witness. See, e.g., McConico v. Alabama, 919 F.2d 1543, 1546 (11th Cir.1990) (noting that a conflict of interest may arise in either context). The fact that these two types of conflicts arise most frequently does not mean, howev er, that these are the only two contexts in which a lawyer’s conflict of interest can deprive her client of the effective assistance of counsel. See, e.g., Zamora v. Dugger, 834 F.2d 956, 960-61 (11th Cir.1987) (noting that “the standard developed in Cuyler has been applied to cases in which defendants argue that their lawyers were more interested in publicity than in obtaining an acquittal”); United States v. McLain, 823 F.2d 1457, 1463 (11th Cir.1987) (finding Cuyler requirements met where lawyer faced possible prosecution by same United States Attorney’s office that was prosecuting his client); Zuck v. Alabama, 588 F.2d 436, 438-40 (5th Cir.1979) (concluding that lawyers who previously had represented the prosecutor who was prosecuting their current client had actual conflict of interest); see also Fitzpatrick v. McCormick, 869 F.2d 1247, 1251-53 (9th Cir.1989) (finding denial of effective assistance of counsel where lawyer failed to present evidence that would exculpate current client at expense of non-testifying former client). It is important to keep this observation in mind when we are faced with situations, such as this one, in which an asserted conflict does not precisely fit within either of these two traditional contexts. In such situations, our prior cases interpreting the two-pronged Cuyler standard should be evaluated with care before they are imported into the new context. A. With respect to the first prong of Cuyler, the majority concludes that Smith v. White, 815 F.2d 1401 (11th Cir.1987), articulates our circuit’s exclusive test for proving an actual conflict of interest in the successive representation context. In order to establish an actual conflict under this test, a habeas petitioner must make “a showing of ‘inconsistent interests.’ ” Smith, 815 F.2d at 1405. As the majority sees it, Smith makes proof of either substantial relatedness or disclosure of confidential information a necessary prerequisite to" }, { "docid": "4325870", "title": "", "text": "burden of proof were placed on the Government to prove that defense counsel did not inadequately represent a defendant. First of all, preparation to assume that burden would require the prosecutor to order an investigation into what for the prosecution has heretofore in most instances been a completely prohibited area — the confidential relationship between a criminal defendant and his counsel — and it would be the Government’s investigative arm, the FBI or the police, that would be ordered to make the necessary investigation. While there may be cases where an FBI or police investigation into a lawyer’s representation of a defendant in a criminal case would be appropriate, as where defense counsel allegedly committed some criminal offense in his representation of his client, if the burden of disproving prejudice were shifted to the prosecution, as my colleagues would compel, the majority of such investigations would be required to probe in depth into confidential communications and relations between the defendant and his lawyer. A particular target of such investigations would be admissions and statements as to guilt that the defendant may have made to his lawyer. Can defense disclose these privileged communications? In such an inquiry the interests of former defense counsel would then become adverse to those of his former client. Any evidence the lawyer may have been furnished by his client, or otherwise obtained while he was representing the accused, which bore on the question of guilt, would be fairly producible if the defendant was attacking his counsel. But what of a situation, such as we have here, where two appellate judges raised the issue without informing the defendant or advising him of the privileged disclosures that might be compelled? If the defendant made the motion he would open the door to such inquiry by the prosecutor, the defendant himself would always be a prime target for interrogation, and his exercise of his fifth amendment rights might conflict with an adequate investigation — as possibly in this case — where it appears that appellant apparently committed perjury in the trial of the case. Defense counsel himself might face" }, { "docid": "9529150", "title": "", "text": "if they would pitch in $25,000 apiece for Judge Stillo and “a contact”. Roth told them it was too late to get an acquittal, but that money could palliate things. Stillo “doesn’t read case law”, Roth said, but knows that money talks. On the morning Judge Stillo was scheduled to rule on post-trial motions, one of the two convicted defendants delivered $25,000 in $100 bills to Roth’s secretary. The secretary received a call from Joe Stillo, Judge Adam Stillo’s nephew. The secretary said: “The papers are in order.” Judge Stillo sentenced the paying defendant to three years’ probation; the non-paying defendant was sent to jail for six years. II Roth obviously needed a good lawyer. He hired Patrick Tuite, one of Chicago’s leading criminal defense attorneys and the engineer of the only total acquittal that had then been obtained in any Greylord prosecution. Tuite represented several judges and lawyers in connection with charges of corruption, and at the time Roth hired him Tuite had been retained by others under investigation. This created potential conflicts of interest. Roth might find it in his interests to strike a deal with the prosecü-tors, who would require Roth to sing for his supper. Roth’s information might inculpate one or more of Tuite’s other clients. Tuite therefore said that he could not represent Roth in connection with a plea bargain; Roth agreed to this condition. Tuite properly called the potential for conflict to the attention of the court. Judge Getzen-danner then questioned Roth — formerly a state prosecutor, and a member of the bar for more than 20 years — abut his understanding of the situation. The prosecutor expressed concern that in state court Tuite had represented co-de fendants of both Filliponio and Davis, who were to testify for the government. In the Filliponio case, a trial for conspiracy to commit perjury, Roth himself had been among the defendants. The prosecutor wanted to be sure that Roth understood that Tuite might have learned secrets on which he would be forbidden to capitalize in defending Roth. Tuite told Judge Get-zendanner that he had learned nothing that" }, { "docid": "1273402", "title": "", "text": "only \"inside” information possessed by Randall — i.e., his knowledge of the prosecutor's office — would have been, if anything, to Maiden’s advantage. . In Troné, a civil case, the court said that an attorney's professional commitment to zealous representation of her client “is not furthered, but endangered, if the possibility exists that the lawyer will change sides later in a substantially related matter.” Id. . We by no means endorse the practice of switching sides in criminal cases; we merely hold that it does not necessarily create a conflict of interest for constitutional purposes, and that it did not in fact do so here. The practice may well raise serious ethical problems for practitioners. See Annotated Model Rules of Professional Conduct, Rule 1.7, cmt. (1992) (“Loyalty is an essential element in the lawyer’s relationship to a client”); Hall, Professional Responsibility of the Criminal Lawyer 401 (1987) (\"ethic[s] rules prohibit any conflicts which could diminish or dilute a lawyer's loyalty and zeal in representing a client”). . California also argues that Maiden waived his Sixth Amendment rights when he said in open court that he knew Randall had previously prosecuted him, but that he still chose to continue with Randall as his attorney. However, the trial court did not ascertain whether Maiden knew a possible conflict existed and might affect his case, or whether he knew he had the right, in such a situation, to have a different attorney appointed. Courts have a \"serious and weighty responsibility\" to ascertain with certainty that a defendant has waived a constitutional right. Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); United States v. Christensen, 18 F.3d 822, 826 (9th Cir.1994). Neither Maiden's brief colloquy with the court, nor the subsequent \"silence and inaction” of his attorney, as the district court put it, demonstrate a knowing and voluntary waiver. . Neither Maiden’s counsel nor the prosecutor suggested that the judge was actually biased, or that his remark indicated an actual desire to see more convictions, and Maiden does not now advance any such contention. . Other circuits," }, { "docid": "8014068", "title": "", "text": "seq. In any event, the factual support Jones was able to muster for his allegations is impressive. We cannot expect Foy to have volunteered in his affidavit “that Hill’s trial testimony was inconsistent with prior statements she had made to [him]” or “that Foy’s representation of and concern for Hill were the reason he did not cross-examine her more rigorously.” See ante at 269-70. (If Foy had made those statements, a hearing would not be necessary; Jones would be entitled to immediate relief on the merits.) The natural reluctance of defense trial counsel to cooperate with habeas counsel in an ineffective assistance claim is well known. Trial counsel is understandably hesitant to “help[ ] a former client publicly criticize his reputation;” indeed, a successful claim may draw the attention of the disciplinary body that polices lawyer conduct. Meredith J. Duncan, The (So-Called) Liability of Criminal Defense Attorneys: A System in Need of Reform, 2002 B.Y.U. L.Rev. 1, 27-28 (2002). This problem is particularly acute in Cuyler claims because it may be necessary to question the lawyer to determine how a particular conflict affected his representation. Often, the only way to get the full story is through an evidentiary hearing where the lawyer is subpoenaed to testify. A lawyer’s concurrent representation of a defendant and a key prosecution witness in a criminal case can present a serious conflict of interest, even though the lawyer is representing the witness in an unrelated case. If the conflict of interest adversely affects the lawyer’s performance by limiting his cross-examination to avoid impeaching his witness-client, the defendant has been denied his Sixth Amendment right to counsel under Cuyler. When a defendant (or petitioner) like Jones has alleged such an adverse effect based on all the facts he can reasonably obtain without an evidentiary hearing, and the allegations of inferential fact cannot be resolved without examining additional evidence, he is entitled to the hearing. See Porter, 805 F.2d at 935. Jones has more than met this standard, and he should be granted a hearing." }, { "docid": "23370494", "title": "", "text": "a potential conflict of interest and therefore governed by Strickland. IY. Application to Armienti’s Claim Armienti does not allege a per se conflict of interest. And, although he asserts that the district court had an inquiry obligation, we denied his motion for a certificate of appealability on this issue because Armienti did not make a substantial showing that the district court was aware of a possible conflict of interest at the time of trial. We will not address a claim not included in the certifícate of appealability. See Valverde v. Stinson, 224 F.3d 129, 136 (2d Cir.2000) (citing 28 U.S.C. § 2253(c)(3) and Soto v. United States, 185 F.3d 48, 53 (2d Cir.1999)). Armienti is therefore not entitled to an automatic reversal of his conviction. Armienti does, however, present a plausible claim that his lawyer had an actual conflict of interest. The lawyer was being criminally investigated by the same United States Attorney’s office that was prosecuting Armienti. The interests of lawyer and client may therefore have diverged with respect to their dealings with that office. Armienti alleges numerous instances of specific deficiencies that he argues were the product of the conflict. Among these are his lawyer’s failure to conduct further investigation, failure to vigorously cross-examine the government’s witnesses, and failure to make various objections. Armienti also alleges that his lawyer’s own criminal investigation caused him to devote less time to his representation of Armienti and to be ill-prepared and distracted at trial. And Armienti alleges that his lawyer misadvised him not to talk to the probation department at the time of his sentencing. A lawyer in these circumstance, while dealing on behalf of his client with the office that is prosecuting him personally may, consciously or otherwise, seek the goodwill of the office for his own benefit. A lawyer’s attempt to seek the goodwill of the prosecutor may not always be in the best interest of the lawyer’s client. We therefore conclude that Armienti made a sufficient showing to require the district court to hold an evidentiary hearing to determine whether there was an actual conflict of interest and," }, { "docid": "2922771", "title": "", "text": "retained. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). An attorney’s conflict of interest may give rise to a claim of ineffective assistance. Stoia, 22 F.3d at 770. Daniels argues that his inability to pay Reilley caused Reilley’s financial interest to conflict with his interest in providing Daniels with the best possible representation. Under Cuyler, a defendant claiming ineffective assistance because of a conflict of interest where the trial judge was not notified of the conflict “must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718; Stoia, 22 F.3d at 770. Daniels contends that the fee dispute created an actual conflict of interest that adversely affected Reilley’s performance. A conflict of interest arises “when the defense attorney ... [is] required to make a choice advancing his own interests to the detriment of his client’s interests.” United States v. Horton, 845 F.2d 1414, 1419 (7th Cir.1988). The classic conflict of interest situation arises when a lawyer represents two or more co-defendants (as was the case in Cuyler) or two clients with opposing interests. A conflict may also arise when a client’s interests are adverse to his lawyer’s pecuniary interests. See Winkler v. Keane, 7 F.3d 304, 308 (2d Cir.1993) (contingent fee in criminal case created actual conflict of interest), cert. denied, — U.S. —, 114 S.Ct. 1407, 128 L.Ed.2d 79 (1994); United States v. Marrera, 768 F.2d 201, 207 (7th Cir.1985) (attorney’s interest in movie rights to client’s story created potential conflict of interest), cert. denied, 475 U.S. 1020, 106 S.Ct. 1209, 89 L.Ed.2d 321 (1986); United States v. Marquez, 909 F.2d 738, 741 (2d Cir.1990) (noting that prosecutor’s attempt to use release of confiscated funds, which would be used to pay defense attorney, as bargaining chip in criminal case could create a conflict of interest), cert. denied, 498 U.S. 1084, 111 S.Ct. 957, 112 L.Ed.2d 1045 (1991); Motta v. District Director, Immigration and Naturalization Service, 869 F.Supp. 80, 89 (D.Mass.1994) (attorney’s dissatisfaction with fee arrangement not legitimate excuse for filing untimely" }, { "docid": "3349936", "title": "", "text": "that he preferred Hearst; when a court appoints counsel, it need not choose the lawyer the defendant prefers. Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). Once again, however, the record does not reveal information that is essential to evaluating the propriety of appointing co-counsel (if that is the best way to understand matters). Other defendants’ lawyers could not represent Robert if that would have created a conflict of interest with their own clients. See Wheat v. United States, 486 U.S. 153, 159-62, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). The district court did not explore the question whether conflicts existed or invite waivers (from Robert and other defendants; all clients would have to consent under the circumstances). See United States v. Roth, 860 F.2d 1382 (7th Cir.1988) (holding that defendants may waive the entitlement to conflict-free counsel, provided the waiver is intelligent). Nor did the judge ask whether the other lawyers were pursuing a sensible defense strategy for Robert. If to other defense lawyers “standing in” for Hearst meant only defending their own clients’ interests and reporting to Hearst at day’s end what had transpired, then again Robert was effectively unrepresented. According to the memorandum the United States filed after oral argument, Robert forfeited any entitlement to protest the absence of an inquiry into conflicts (or the way other lawyers understood their obligation to protect Robert’s interests) by not presenting evidence on these points at the hearing. That puts the burden in the wrong place. A judge who effectively appoints one lawyer to serve two clients must initiate inquiry on his own, see Russell, as the judge in this trial did not. Belated inquiry could have shown that the omission at trial was harmless, because there was no conflict, but the prosecutor did not raise the subject at the hearing. Nor do we think it possible to say that Robert forfeited the entire subject — not only because Hearst’s absences were a major component of Robert’s motion for a new trial (which should have alerted the prosecution to the need to develop evidence about" } ]

[ { "docid": "22623731", "title": "", "text": "circumstances, two courts below concurred in the view that the case should not be tried in New York as there was ample remedy available in the state and federal courts of Illinois. Both relied upon Rogers v. Guaranty Trust Co., 288 U. S. 123. The dissenting judge below considered that our more recent decision in Williams v. Green Bay & Western R. R., 326 U. S. 549, implies disapproval of the Rogers case and restricts application of the doctrine of forum non conveniens. We brought the case here on certiorari. 329 U. S. 700. This case involves the special problems of forum non conveniens which inhere in derivative actions, and which have been little considered by this Court. Williams v. Green Bay & Western R. R., 326 U. S. 549, was not a derivative action brought in the right of a nominal defendant corporation. Rogers v. Guaranty Trust Co., 288 U. S. 123, was a derivative action, but that feature of the case was given almost no attention and the emphasis was entirely on the extent to which it involved inquiry into the “internal affairs of a foreign corporation,” certainly not the most distinguishing feature of these actions. The stockholder’s derivative action, to which this policyholder’s action is analogous, is an invention of equity to supply the want of an adequate remedy at law to redress breaches of fiduciary duty by corporate managers. Usually the wrongdoing officers also possess the control which enables them to suppress any effort by the corporate entity to remedy such wrongs. Equity therefore traditionally entertains the derivative or secondary action by which a single stockholder may sue in the corporation’s right when he shows that the corporation on proper demand has refused to pursue a remedy, or shows facts that demonstrate the futility of such a request. With possible rare exceptions, these actions involve only issues of state law and, as in the present case, can get into federal courts only by reason of diversity in citizenship of the parties. Their existence and peculiar character were recognized by this Court in the old Equity Rules." } ]

[ { "docid": "5434747", "title": "", "text": "the securities market had gone down, and with it the price of Mayflower stock. The sale made was at about the same point above the market as had brought the previous offer to $17.50. Several factors had intervened to cause the decline, including a 21 day strike at the hotel and an anticipated falling off in the hotel business. There was also evidence of previous offers to buy the physical property at prices indicating that the 'stock was worth more than $13 a share; but these did not mature and furnish no basis for upsetting the sale which was actually made. We are of the opinion the findings and conclusions of the trial judge regarding the sale are justified. In so- holding we are conscious that where a fiduciary obligation is involved the support for such findings must be quite clear, and that the burden rests upon the fiduciaries to establish the entire fairness of the transaction. 2. The management contract. Shortly after Hilton acquired the majority stock it entered into a contract with Mayflower for the management of the Mayflower hotel. Appellants seek to set aside this contract as a fraud upon them. It is dated January 2, 1947, was approved by the Mayflower Board January 27, 1947, and was retroactive to the first of the year. It is to continue for five years, subject during that period to termination for reasonable cause, as defined, upon written notice. The new directors of the Mayflower Board, placed there by Hilton, refrained from voting when the Board approved the contract. Nevertheless the fact is, as recognized by the trial judge, that Hilton, which was then the majority stockholder of Mayflower, sat on both sides of the table for all practical purposes. While this does not render the contract illegal per se it brings it under careful scrutiny. Mayflower Hotel Stock. P. C. v. Mayflower Hotel Corp., 84 U.S.App.D.C. at pages 280, 282, 173 F.2d at pages 421, 423; Pepper v. Litton, 1939, 308 U.S. 295, 306, 60 S.Ct. 238, 245, 84 L.Ed. 281; Southern Pacific Co. v. Bogert, 1919, 250 U.S." }, { "docid": "3603656", "title": "", "text": "[and] displace Joel as manager of his financial affairs”, Id. at 681; that— as the jury could reasonably have concluded — AAreiss “conveyed to Robert false accusations as to Joel’s integrity”, Id. at 674, and “wilfully alienated Robert from his family by falsely accusing Joel of fraud and mismanagement in the conduct of the family business enterprises”, Id. at 682; and that among AAreiss’ intrusions upon various Kaufmann family enterprises was his instigation in 1953 of litigation in which Robert sought to block the formation of Kay. AVeiss did not testify at the will contest trial. However, he gave pretrial testimony. In its opinion the court cites respects in which “the jury could have found AATeiss lied deliberately” and recounts Weiss’ “deliberately false pretrial testimony.” Id. at 682, 684, . Joint Appendix, p. 169. . Perhaps more illumination price-wise would be in the record but for the position Weiss took in the District Court that Joel must return to Kay the difference between the auction price he paid and the price later paid to him by Kay, without regard to Joel’s acquisition expenses or to the true value of the stock. . Transcript of Proceedings of April 30, 1970, p. 9. The court said: “Well, if your case depends on showing that this was an excessive price, not only an excessive price, but the amount of the excessive price, then surely you’ve got to dispute a material fact in here.” . Fed.R.Civ.P. 56(c) and (e). . Wittlin v. Giacalone, 81 U.S.App.D.C. 20, 154 F.2d 20 (1946). The complaint itself does not allege that a corporate purpose was lacking in Kay’s acquisition of the stock. . We recognize, of course, that upon a trial on the merits the facts may appear differently. . Rogers v. Guaranty Trust Co., 288 U.S. 123, 53 S.Ct. 295, 77 L.Ed. 652 (1933); Mayflower Hotel Stock P. Com. v. Mayflower H. Corp., 89 U.S.App.D.C. 171, 193 F.2d 666 (1951). . Blish v. Thompson Automatic Arms Corporation, 30 Del.Ch. 538, 64 A.2d 581, 593, 603 [22], 604 (1948). In Sterling v. Mayflower Hotel Corp., 33 Del.Ch. 293," }, { "docid": "8633584", "title": "", "text": "acquisition of Mayflower stock held by minority stockholders at a manipulated price by knowingly making misrepresentations as to the price paid by Hilton to Donner, with the intent to induce the minority stockholders to sell at such false price, and to assist the defendant Hilton in exercising its control fraudulently by operating Mayflower primarily for Hilton’s benefit, as. set forth specifically hereinafter. Here is cause of action stated. While it is admitted on all sides that the majority stockholders had a right to sell to whom they chose, when they chose, and at whatever price they chose to accept, the allegations that in pursuance of a fraudulent conspiracy the price was misrepresented for the purpose, of artificially depressing the price of the minority stock, in our view, state another cause of action. But the petition is more specific as showing the overt acts and breaches of fiduciary duty in pursuance of the alleged fraudulent conspiracy. It is alleged: (1) On October 22, 1945, defendant Binns, an appointee and representative of the defendant Donner on the Board of Directors of Mayflower, resigned as a director of Mayflower. Soon thereafter he became associated with the defendant Hilton. It is alleged that the purpose of this change was to prepare for and cause the transfer of control secretly, by utilizing the knowledge obtained by the defendant Binns while representing Donner on the Board of Directors of Mayflower; and (2) in July, 1946, in order to prepare for consummation of the conspiracy, the defendant Folger, together with the defendants Stewart and C. Kenneth Baxter, caused the mortgage on Mayflower to be paid off, so as to clear the property for the benefit of the future majority stockholder, Hilton. This transaction was financed by notes in the amount of $1,700,000, and it is alleged that instead of consummating this arrangement with the banks with whom it was made, the brokerage firm in which the defendant Folger is the senior partner was interposed as the buyer of the notes, that the money for the purchase of these notes came from the banks and not from the" }, { "docid": "8633579", "title": "", "text": "or its officers and directors. The same fiduciary duty is due from a dominant or controlling stockhólder or group of stockholders to the minority as is due from the director of a corporation to the stockholders. Said Mr. Justice Douglas in that case, 308 U.S. at page 306, 60 S.Ct. at page 245, 84 L.Ed. 281: “A director is a fiduciary. Twin-Lick Oil Co. v. Marbury, 91 U.S. 587, 588, 23 L.Ed. 328. So is a dominant or controlling stockholder or group of stockholders. Southern Pacific Co. v. Bogert, 250 U.S. 483, 492, 39 S.Ct.. 533, 537, 63 L.Ed. 1099. Their powers are powers in trust. See Jackson v. Ludeling, 21 Wall. 616, 624, 22 L.Ed. 492.” It is also true that the majority stockholders, upon whom the minority is dependent for knowledge, must make full disclosure when selling stock control. Saut-ter v. Fulmer, 1932, 258 N.Y. 107, 179 N.E. 310. Fletcher Cyclopedia Corporations,, Vol. 13, Sec. 5845, states: “A secret and unfair sale of controlling stock may be redressed by suit of the minority.” We will now proceed to apply these established principles of law to the instant case. Inasmuch as this case comes up on an order for dismissal of plaintiffs’ amended complaint in the District Court, the facts of the case as they might subsequently develop at a hearing of the cause on its merits are not now before us and we are not concerned with what plaintiffs might or might not be able to prove. All facts properly pleaded are taken as confessed, as we have stated above. The amended complaint alleges that the Mayflower Hotel was completed in 1925 at a cost of more than $10,000,000, and equipment and furnishings were installed at a cost of $1,500,000. At that time a first deed of trust of $7,500,000 and a second trust of $2,400,000 were placed upon the property, and both preferred and common stock were issued. In 1934 the Company was reorganized and under the Reorganization Plan of 1934 all the first and second trusts and existing stock issues were cancelled, a new first trust" }, { "docid": "22196555", "title": "", "text": "absence of fraud or foreseeable looting, was entitled to deal according to his own best interests. Furthermore, he held that plaintiffs had failed to satisfy their burden of proving that the sales price was not a fair price for the stock per se. Plaintiffs appeal from these rulings of law which resulted in the dismissal of their complaint. The essential facts found by the trial judge are not in dispute. Newport was a relative newcomer in the steel industry with predominantly old installations which were in the process of being supplemented by more modern facilities. Except in times of extreme shortage Newport was not in a position to compete profitably with other steel mills for customers not in its immediate geographical area. Wilport, the purchasing syndicate, consisted of geographically remote end-users of steel who were interested in buying more steel from Newport than they had been able to obtain during recent periods of tight supply. The price of $20 per share was found by Judge Hincks to be a fair one for a control block of stock, although the over-the-counter market price had not exceeded $12 and the book value per share was $17.03. But this finding was limited by Judge Hincks’ statement that “[w]hat value the block would have had if shorn of its appurtenant power to control distribution of the corporate product, the evidence does not show.” It was also conditioned by his earlier ruling that the burden was on plaintiffs to prove a lesser value for the stock. Both as director and as dominant stockholder, Feldmann stood in a fiduciary relationship to the corporation and to the minority stockholders as beneficiaries thereof. Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281; Southern Pac. Co. v. Bogert, 250 U.S. 483, 39 S.Ct. 533, 63 L.Ed. 1099. His fiduciary obligation must in the first instance be measured by the law of Indiana, the state of incorporation of Newport. Rogers v. Guaranty Trust Co. of New York, 288 U.S. 123, 136, 53 S.Ct. 295, 77 L.Ed. 652; Mayflower Hotel Stockholders Protective Committee v. Mayflower Hotel Corp., 89" }, { "docid": "8633592", "title": "", "text": "of Mayflower, and the defendant C. N. Hilton, as President of Hilton announced through the public press, without prior notice to the stockholders, that the defendant Hilton had purchased all the stock- controlled by Donner and had taken over control of the Mayflower Hotel, effective as of that date. It is alleged that thereafter, the defendant Hilton a-sserted ownership of the Mayflower Hotel. It is further alleged that on December 18, 1946, and mailed on December 20, 1946, on stationery of the Hilton Hotels Corporation, the defendant Hilton, by C. N. Hilton as President, sent a printed circular letter postmarked Washington, D. C., to the stockholders of Mayflower, stating that on that day the defendant Hilton had purchased all the common stock of Mayflower controlled by Donner at the price of $13 per share, and agreeing that “the same offer would be made to all other holders of the Mayflower Hotel Corporation common stock”, the stock to be forwarded by mail to the defendant Hilton, Stevens Hotel, Chicago, Illinois. The appellants specifically allege from information and belief that this letter deliberately misrepresented the price paid for the shares, failed to state the whole transaction, and was intended to induce the minority stockholders to surrender their stock at such fictitious price. Here certainly is another cause of action stated .since it is alleged that by conspiracy between Donner and Hilton and certain directors, a deliberately misleading version was put out of an actual transaction not truly representing the , actual transaction but deliberately designed to depress through propaganda and misinformation the value of the outstanding minority stock. We now come to the most important of the allegations in appellants’ amended complaint, since it involves directly the principles set out in the earlier part of this opinion as to dealings between the interlocking directorates and oppression of subsidiary corporations having minority stockholders by controlling corporations owning a majority of stock of the subsidiary corporation but having no identity with or sympathy for the rights of minority stockholders of the subsidiary corporation. It is alleged that at the emergency meeting on December 19," }, { "docid": "5434736", "title": "", "text": "FAHY, Circuit Judge. Certain minority stockholders of the Mayflower Hotel Corporation, a Delaware corporation (referred to in this opinion as Mayflower), filed an action in the District Court against Mayflower, Hilton Hotels Corporation . (referred to as Hilton), and certain officers of these and other corporations involved in transactions attacked as illegal. The case was before this court in Mayflower Hotel Stock. P. C. v. Mayflower Hotel Corp., 1949, 84 U.S.App.D.C. 275, 173 F.2d 416, where we reversed a judgment which had dismissed the amended complaint for failure to state -a cause of action. On remand, answers were filed, trial was had, findings of fact and conclusions of law were made, and final judgment was entered for defendants. Plaintiffs appeal again. The relief they seek is primarily with respect to (1) the acquisition by Hilton of the majority stock of Mayflower, alleged to have been accomplished in a manner violative of the rights of that corporation and of its -stockholders; (2) a management contract between the two h-otel corporations by which Hilton was engaged to manage the Mayflower hotel; and (3) commissions and bonuses paid by Mayflower to defendant Fo-lger, Nolan, Incorporated, in connection with (a) the purchase of Mayflower bonds to meet its sinking fund requirements and (b) refinancing of a Mayflower indebtedness of $1,700,000. From this brief statement it is seen that the action involves to- -some extent the internal affairs of a foreign corporation. In such circumstances the courts of another jurisdiction will not ordinarily interfere. Rogers v. Guaranty Trust Co., 1933, 288 U.S. 123, 130, 53 S.Ct. 295, 77 L.Ed. 652; Beasley v. Mutual Housing Co., 1930, 59 App.D.C. 245, 39 F.2d 290; Maccarone v. Big Sign Shop, 1930, 59 App.D.C. 345, 41 F.2d 567; Fletcher Cyclopedia Corporations, Vol. 17, § 8425, p. 367. Bu: there is a discretion; Rogers v. Guaranty Trust Co., supra; Williams v. Green Bay & W. R. Co., 1946, 326 U.S. 549, 556-557, 66 S.Ct. 284, 91 L.Ed. 311; Koster v. (American) Lumbermens Mutual Co., 1947, 330 U.S. 518, 528, 67 S.Ct. 828, 91 L.Ed. 1067; Restatement, Conflict of Laws, Topic" }, { "docid": "3603657", "title": "", "text": "by Kay, without regard to Joel’s acquisition expenses or to the true value of the stock. . Transcript of Proceedings of April 30, 1970, p. 9. The court said: “Well, if your case depends on showing that this was an excessive price, not only an excessive price, but the amount of the excessive price, then surely you’ve got to dispute a material fact in here.” . Fed.R.Civ.P. 56(c) and (e). . Wittlin v. Giacalone, 81 U.S.App.D.C. 20, 154 F.2d 20 (1946). The complaint itself does not allege that a corporate purpose was lacking in Kay’s acquisition of the stock. . We recognize, of course, that upon a trial on the merits the facts may appear differently. . Rogers v. Guaranty Trust Co., 288 U.S. 123, 53 S.Ct. 295, 77 L.Ed. 652 (1933); Mayflower Hotel Stock P. Com. v. Mayflower H. Corp., 89 U.S.App.D.C. 171, 193 F.2d 666 (1951). . Blish v. Thompson Automatic Arms Corporation, 30 Del.Ch. 538, 64 A.2d 581, 593, 603 [22], 604 (1948). In Sterling v. Mayflower Hotel Corp., 33 Del.Ch. 293, 93 A.2d 107 (1952), the Delaware Supreme Court states at page 119 that Blish, supra, “merely approves a general rule of the common law.” See also Warshaw v. Calhoun, 221 A.2d 487 (Del.1966). . The text of § 144(a) of the Delaware corporation law reads as follows : “No contract or transaction between a corporation and 1 or more of its directors or officers, or between a corporation and any other corporation, partnership association, or other organization in which 1 or more of its directors or officers, are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the board or committee which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose, if: (1) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the board of directors or the committee, and" }, { "docid": "5434742", "title": "", "text": "and Folger 5,300 shares, their sum constituting a majority of the stock. In these circumstances some of the standards applicable to fiduciary relationships apply to the sale. Twin-Lick Oil Co. v. Marbury, 1875, 91 U.S. 587, 588; 23 L.Ed. 328; Southern Pacific Co. v. Bogert, 1919, 250 U.S. 483, 492, 39 S.Ct. 533, 63 L.Ed. 1099. See, also, Jackson v. Ludeling, 1874, 21 Wall. (88 U.S.) 616, 624, 22 L.Ed. 492; Pepper v. Litton, 1939, 308 U.S. 295, 306, 60 S.Ct. 238, 84 L.Ed. 281. As recently stated by the Supreme Court in Securities and Exchange Comm. v. Chenery Corp., 1943, 318 U.S. 80, 85-86, 63 S.Ct. 454, 87 L.Ed. 626, to say that one is a fiduciary only begins analysis; but, as we held on the prior appeal, one of the consequences in circumstances like the present is that the majority stockholders, “upon whom the minority is dependent for knowledge, must make full disclosure when selling stock control”, citing Sautter v. Fulmer, 1932, 258 N.Y. 107, 179 N.E. 310. Mayflower Hotel Stock. P. C. v. Mayflower Hotel Corp., 84 U.S. App.D.C. at page 282, 173 F.2d at page 423. Fletcher Cyclopedia Corporations, Vol. 13, § 5845, p. 187, was quoted as follows : “A secret and unfair sale of controlling stock may be redressed by suit of the minority.” Fletcher, at the point indicated, cites for support: “Secretly selling controlling shares above par while urging others to sell at par shows fraud. McManus v. Durant, 168 App.Div. 643, 154 N.Y.S. 580. “Where majority stockholders, in violation of -fiduciary duties owing the minority, secure the minority stock on the false representation that a third party has offered a certain price for the company’s stock, and then sell their own stock to such purchaser for more than three times as much, the fact that the sale of the majority stock was attended by certain covenants on the majority stockholders’ part of doubtful and unascertainable value, does not relieve them of the duty of accounting. Sautter v. Fulmer, 258 N.Y. 107, 179 N.E. 310.” Thus the secrecy which condemns ■such a sale" }, { "docid": "5434748", "title": "", "text": "for the management of the Mayflower hotel. Appellants seek to set aside this contract as a fraud upon them. It is dated January 2, 1947, was approved by the Mayflower Board January 27, 1947, and was retroactive to the first of the year. It is to continue for five years, subject during that period to termination for reasonable cause, as defined, upon written notice. The new directors of the Mayflower Board, placed there by Hilton, refrained from voting when the Board approved the contract. Nevertheless the fact is, as recognized by the trial judge, that Hilton, which was then the majority stockholder of Mayflower, sat on both sides of the table for all practical purposes. While this does not render the contract illegal per se it brings it under careful scrutiny. Mayflower Hotel Stock. P. C. v. Mayflower Hotel Corp., 84 U.S.App.D.C. at pages 280, 282, 173 F.2d at pages 421, 423; Pepper v. Litton, 1939, 308 U.S. 295, 306, 60 S.Ct. 238, 245, 84 L.Ed. 281; Southern Pacific Co. v. Bogert, 1919, 250 U.S. 483, 39 S.Ct. 533, 63 L.Ed. 1099. The burden is upon such a stockholder, as it is upon the director, to prove not only the “good faith of the transaction but also to show its inherent fairness from the viewpoint of the corporation and those interested therein.” Pepper v. Litton, supra, 308 U.S. at page 306, 60 S.Ct. at page 245. The effect of failure to meet the burden, as illustrated by the Pepper case, is to deny recovery to the majority stockholder of his claims against the corporation based upon the transactions; similarly, when he has already received payment, an action for an accounting will lie. Southern Pacific Co. v. Bogert, supra; Mayflower Hotel Stock. P. C. v. Mayflower Hotel Corp., supra. Since the management contract is also one between corporations with interlocking directorates, a concurrent ground exists for requiring that the provisions must meet the high standards applicable to such a situation. As stated by this court in its prior decision, quoting from Garrett v. Reid-Cashion Land & Cattle Co., 34 Ariz. 245," }, { "docid": "8633561", "title": "", "text": "CLARK, Circuit Judge. This is an appeal from a final judgment of the District Court of the United States for the District of Columbia granting motions, to dismiss an amended complaint filed by appellants for injunction, receivership, accounting and to set aside a contract for fraud against the appellees herein. The appellants brought suit in equity as stockholders of Mayflower Hotel Corporation and on behalf of Mayflower Hotel Stockholders Protective Committee (representing holders of more than 6500 shares of stock of Mayflower Hotel Corporation) and on behalf , of many others similarly situated. The appellees are Mayflower Hotel Corporation, Hilton Hotels Corporation, the officers and directors of these two corporations, and Donner Estates, Incorporated. The suit involves sundry charges of fraud involving a conspiracy on the part of the Donner Estates, the former owner of the majority of stock of the Mayflower Hotel Corporation and the Hilton Hotels Corporation, purchaser from Donner of the same majority stock, to unfairly depress the price of the minority stockholders’ holdings by fraudulently and untruthfully publishing that the stock had been acquired for a much lesser price than had actually been the case. The bill charged defendant Folger, formerly president of the Mayflower Corporation, not only with participation in several fraudulent acts as a director, but also with direct fraud in the transaction with regard to the refinancing of certain notes which is alleged to have been actually done by arrangements with the bank but which was fraudulently made to appear as a sale to Folger and his brokerage firm, out of which Folger derived a private profit in the sum of $17,000. to the detriment of Mayflower and its stockholders, and the bill alleges that, although the sale was actually to the bank, the records of Mayflower were fraudulently caused- to reflect the sale to Folger’s firm. The bill further alleges that as soon as Hilton secured the control of the corporation it succeeded, through a controlled Board of Directors in negotiating a management contract between Hilton and Mayflower to the profit of Hilton and greatly to the detriment of Mayflower, and more" }, { "docid": "8633591", "title": "", "text": "We think that upon this issue appellees should be required to answer and be put upon their proof. It is alleged that at the same meeting the defendant Folger resigned as President of Mayflower but was retained and elected as a member of its Executive Committee, and that all of the officers of Mayflower resigned and were replaced by Hilton officials (except the defendant Raney). As a result of this election appellants allege that every officer of the defendant Mayflower, with the exception of Raney, is now an officer of the defendant Hilton and it is further alleged that of the seven directors of the defendant Mayflower a majority are also directors of defendant Hilton. It is alleged that none of the former directors and officers of Mayflower had ever informed the minority stockholders about the transfer of control of Mayflower from Donner to Hilton and that the only information given was by Hilton after the transfer and was incomplete and misleading. It is alleged that on December 19, 1946, the defendant Folger, as President of Mayflower, and the defendant C. N. Hilton, as President of Hilton announced through the public press, without prior notice to the stockholders, that the defendant Hilton had purchased all the stock- controlled by Donner and had taken over control of the Mayflower Hotel, effective as of that date. It is alleged that thereafter, the defendant Hilton a-sserted ownership of the Mayflower Hotel. It is further alleged that on December 18, 1946, and mailed on December 20, 1946, on stationery of the Hilton Hotels Corporation, the defendant Hilton, by C. N. Hilton as President, sent a printed circular letter postmarked Washington, D. C., to the stockholders of Mayflower, stating that on that day the defendant Hilton had purchased all the common stock of Mayflower controlled by Donner at the price of $13 per share, and agreeing that “the same offer would be made to all other holders of the Mayflower Hotel Corporation common stock”, the stock to be forwarded by mail to the defendant Hilton, Stevens Hotel, Chicago, Illinois. The appellants specifically allege from information" }, { "docid": "2944605", "title": "", "text": "giving rise to a duty to make disclosure, whore otherwise there would be a great and unfair inequality of bargaining position by the use of inside information * * *. The opinion has been expressed that this special circumstances doctrine seems likely to supersede both of the older views.” Ballantine, Law of Corporations (Rev. ed.), pp. 213-216, as quoted in Fletcher, op.cit. supra, § 1174. This special circumstances or facts doctrine, as erystallized in the landmark case of Strong v. Repide, 1909, 213 U.S. 419, 29 S.Ct. 521, 53 L.Ed. 853, has been followed by many jurisdictions. Fletcher, op.cit., supra, § 1171. The “special facts” and the minority view are also found in Rule X-10B-5 of the Securities Exchange Commission to supplement Section 10(b) of the Act (15 U.S.C.A. § 78j). . Klaxon Co. v. Stentor Elec. Mfg. Co., 1941, 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477; Palmer v. Chamberlin, 5 Cir., 1951, 191 F.2d 532, 536, 27 A.L.R.2d 416. . For instance, the law governing the right of action in tort is the lex loci delicti (Matney v. Blue Ribbon, 1943, 202 La. 505, 12 So.2d 253, affirming La.App., 12 So.2d 249; Mock v. Maryland Casualty Co., La.App., 1942, 6 So.2d 199), the law governing the performance of contracts is the place of performance (Vidal v. Thompson, 1822, 11 Mart., O.S., 23; Palmer v. Chamberlin, supra), and the law of the forum governs matters of procedure (Macomber v. De Bardeleben Coal Co., La.App., 1941, 4 So.2d 483, vacating 200 La. 633, 8 So.2d 624. . Zahn v. Transamerica Corporation, 3 Cir., 1947, 162 F.2d 36, 40, 172 A.L.R. 495. See also, Rogers v. Guaranty Trust Co., 1933, 288 U.S. 123, 130, 53 S.Ct. 295, 77 L.Ed. 512; Perlman v. Feldmann, 2 Cir., 1955, 219 F.2d 173, 175, 50 A.L.R.2d 1134; Mayflower Hotel Stockholders Protective Committee v. Mayflower Hotel Corp., 1951, 89 U.S.App.D.C. 171, 193 F.2d 666, 668; Maxwell v. Enterprise Wall Paper Mfg. Co., 3 Cir., 1942, 131 F.2d 400, 402; Geller v. Transamerica Corp., D.C.Del.1943, 53 F.Supp. 625, 629-630; affirmed 151 F.2d 534; Hirshhorn v." }, { "docid": "8633582", "title": "", "text": "the financial statement of Mayflower shows $3,210,585 undistributed surplus, amounting to over $8.23 per outstanding share. Plaintiffs allege that for many years prior to December 18, 1946, the defendant Donner had been considered the holder of a majority of the stock of Mayflower. That the defendant Donner had voted such stock and had appointed the officers and directors by exercise of such majority although such stock was not registered in the Donner name but in the name of other parties acting for Donner, and that for years Donner had permitted identification of itself as controlling stockholder of Mayflower and permitted- a letter to be sent out by Hilton, dated December 18, 1946, designating Donner as such controlling stockholder. The complaint then alleges specifically that in pursuance of a scheme to depress the market value of the stock of Mayflower, Donner, acting through its Mayflower directors and officers, refused to pay dividends upon said stock. During this period it is alleged that Donner, through its investment counsel, the defendant Folger, who was incidentally the President of Mayflower, and others, continued to purchase Mayflower stock at its reduced market value, and further alleges that the defendant Fol-ger participated in these acts in violation of his fiduciary duties to Mayflower and the minority stockholders. Here is plainly stated one cause of action against Donner, Hilton and their agents and certainly against the defendant Folger, who is specifically accused of a violation of his fiduciary duties as President and Director to the Mayflower Company and to the minority stockholders. The complaint goes on to allege upon information and belief that during the year 1945 and thereafter the defendant Donner, the majority stockholder, acting through the defendants Stewart and C. Kenneth Baxter, both of whom were directors in Mayflower, elected by Donner, entered into a conspiracy with the defendants Binns, Folger and Hilton and the latter’s officers and directors as follows: (1) to secure Mayflower for Hilton by illegal means, namely, secretly and fraudulently so as to circumvent the stockholders and to defraud the minority stockholders; and (2) to assist the defendant Hilton in the" }, { "docid": "2944609", "title": "", "text": "validity of the sale was challenged by the minority shareholders. The Chancellor stated: “ * * * An examination of the cases to which special attention is directed by the complainants in this connection will disclose that the personal advantage accruing to the majority is in some way derived from, or intimately associated with, the corporate assets themselves.” 120 A. 491. See, also, Brophy v. Cities Service Co., 31 Del.Ch. 241, 70 A.2d 5, in which an employee of a corporation, acquiring knowledge in the course of his employment that the corporation secretly intended to purchase large blocks of its capital stock in the market, cannot use such information for his personal gain. Delaware also places a high fiduciary duty upon interlocking directorates regarding transactions between the corporations. Keenan v. Eshleman, 1938, 23 Del.Ch. 234, 2 A.2d 904, 120 A.L.R. 227. However, Cahall v. Lofland, supra, has been followed uniformly by federal courts in interpreting the Delaware law on this subject. See Zahn v. Transamerica Corp., supra, 162 F.2d 36, 40, and cases there cited; Mayflower Hotel Stockholders Protective Committee v. Mayflower Hotel Corp., supra, 193 F.2d 666, 668, 669, 671. . 17 Fletcher, Cyclopedia Corporation §§ 8318, 8326. For visitatorial powers of a state over foreign corporations, see Sections 8425-8145. . Shares of stock are much like other chattels. Apparently, when the action attacks a transfer of a chattel on the ground of fraud, the law of the state where the chattel is at the time of transfer determines the substantial validity of the transfer. Restatement, Conflict of Laws, § 257 and Comment a, provide: “Whether a conveyance of a chattel which is in due form and is made by a party who has capacity to convey it is in other respects valid, is determined by the law of the state where the chattel is at the time of the conveyance. “Comment: “a. Illegality and fraud. The validity of a conveyance of an interest in a chattel alleged to be void between the parties for such reasons as illegality of the transfer or illegality of the consideration or other" }, { "docid": "5434737", "title": "", "text": "manage the Mayflower hotel; and (3) commissions and bonuses paid by Mayflower to defendant Fo-lger, Nolan, Incorporated, in connection with (a) the purchase of Mayflower bonds to meet its sinking fund requirements and (b) refinancing of a Mayflower indebtedness of $1,700,000. From this brief statement it is seen that the action involves to- -some extent the internal affairs of a foreign corporation. In such circumstances the courts of another jurisdiction will not ordinarily interfere. Rogers v. Guaranty Trust Co., 1933, 288 U.S. 123, 130, 53 S.Ct. 295, 77 L.Ed. 652; Beasley v. Mutual Housing Co., 1930, 59 App.D.C. 245, 39 F.2d 290; Maccarone v. Big Sign Shop, 1930, 59 App.D.C. 345, 41 F.2d 567; Fletcher Cyclopedia Corporations, Vol. 17, § 8425, p. 367. Bu: there is a discretion; Rogers v. Guaranty Trust Co., supra; Williams v. Green Bay & W. R. Co., 1946, 326 U.S. 549, 556-557, 66 S.Ct. 284, 91 L.Ed. 311; Koster v. (American) Lumbermens Mutual Co., 1947, 330 U.S. 518, 528, 67 S.Ct. 828, 91 L.Ed. 1067; Restatement, Conflict of Laws, Topic 5, p. 279; Fletcher Cyclopedia Corporations, Vol. 17, §§ 8427, 8444, pp. 375, 413; and we construe this court’s action in deciding the merits o-f the prior appeal as a proper exercise of discretion to entertain the case in this jurisdiction. 1. The purchase by Hilton of the majority common stock of Mayflower. It is urged that Hilton acquired a majority of the common stock o-f Mayflower by a conspiracy among officers of Mayflower and the owners o-f a majority o-f its stock to secure for Hilton control o-f Mayflower to the detriment of its minority stockholders. It is asserted that the stock was sold to Hilton at a price substantially lower than could have been obtained, that the sale was secret, and that there were verbal conditions of which the minority were not informed. In passing upon such questions courts will ordinarily apply the law of the state of incorporation. Rogers v. Guaranty Trust Co., supra, 288 U.S. at page 130, 53 S.Ct. 295 (o-n this-point the dissent of JJ. Stone and Brandéis, and" }, { "docid": "22196556", "title": "", "text": "of stock, although the over-the-counter market price had not exceeded $12 and the book value per share was $17.03. But this finding was limited by Judge Hincks’ statement that “[w]hat value the block would have had if shorn of its appurtenant power to control distribution of the corporate product, the evidence does not show.” It was also conditioned by his earlier ruling that the burden was on plaintiffs to prove a lesser value for the stock. Both as director and as dominant stockholder, Feldmann stood in a fiduciary relationship to the corporation and to the minority stockholders as beneficiaries thereof. Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281; Southern Pac. Co. v. Bogert, 250 U.S. 483, 39 S.Ct. 533, 63 L.Ed. 1099. His fiduciary obligation must in the first instance be measured by the law of Indiana, the state of incorporation of Newport. Rogers v. Guaranty Trust Co. of New York, 288 U.S. 123, 136, 53 S.Ct. 295, 77 L.Ed. 652; Mayflower Hotel Stockholders Protective Committee v. Mayflower Hotel Corp., 89 U.S.App.D.C. 171, 193 F.2d 666, 668. Although there is no Indiana case directly in point, the most closely analogous one emphasizes the close scrutiny to which Indiana subjects the conduct of fiduciaries when personal benefit may stand in the way of fulfillment of trust obligations. In Schemmel v. Hill, 91 Ind.App. 373, 169 N.E. 678, 682, 683, McMahan, J., said: “Directors of a business corporation act in a strictly fiduciary capacity. Their office is a trust. Stratis v. Andreson, 1926, 254 Mass. 536, 150 N.E. 832, 44 A. L.R. 567; Hill v. Nisbet, 1885, 100 Ind. 341, 363. When a director deals with his corporation, his acts will be closely scrutinized. Bossert v. Geis, 1914, 57 Ind.App. 384, 107 N.E. 95. Directors of a corporation are its agents, and they are governed by the rules of law applicable to other agents, and, as between themselves and their principal, the rules relating to honesty and fair dealing in the management of the affairs of their principal are applicable. They must not, in any degree, allow their" }, { "docid": "5434738", "title": "", "text": "5, p. 279; Fletcher Cyclopedia Corporations, Vol. 17, §§ 8427, 8444, pp. 375, 413; and we construe this court’s action in deciding the merits o-f the prior appeal as a proper exercise of discretion to entertain the case in this jurisdiction. 1. The purchase by Hilton of the majority common stock of Mayflower. It is urged that Hilton acquired a majority of the common stock o-f Mayflower by a conspiracy among officers of Mayflower and the owners o-f a majority o-f its stock to secure for Hilton control o-f Mayflower to the detriment of its minority stockholders. It is asserted that the stock was sold to Hilton at a price substantially lower than could have been obtained, that the sale was secret, and that there were verbal conditions of which the minority were not informed. In passing upon such questions courts will ordinarily apply the law of the state of incorporation. Rogers v. Guaranty Trust Co., supra, 288 U.S. at page 130, 53 S.Ct. 295 (o-n this-point the dissent of JJ. Stone and Brandéis, and that of J. Cardozo, do not appear to differ; see 288 U.S. at pages 148-149, 53 S.Ct. 295); Williams v. Green Bay & W. R. Co., supra, 326 U.S. at page 553, 66 S.Ct. 284; Zahn v. Transamerica Corp., 3 Cir., 1947, 162 F.2d 36, 40, 172 A.L.R. 495; Geller v. Transamerica Corp., D.C.Del. 1943, 53 F.Supp. 625, 629, footnote 7, affirmed per curiam, 3 Cir., 1945, 151 F.2d 534; Restatement, Conflict of Laws, §§ 197, 199, pp. 283-4; cf. Moran v. Harrison, 1937, 67 App.D.C. 237, 240, 91 F.2d 310, 313; Armstrong v. U. S. Building Ass’n, 1899, 15 App.D.C. 1, 18. In the prior opinion of this court, however, reliance was primarily placed upon Supreme Court decisions which either arose under federal statutes or were diversity jurisdiction cases decided according to federal law prior to Erie R. Co. v. Thompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. We accordingly construe our prior opinion as an application of the District of Columbia law. Further, we apply the rule that “The first" }, { "docid": "5434741", "title": "", "text": "Group v. Denver & R. G. W. R. Co., 1947, 329 U.S. 607, 612, 67 S.Ct. 583, 91 L.Ed. 547. This court has nevertheless stated that it will disregard the rule only when “a clear case * * * [is] * * * presented showing that the earlier adjudication was plainly wrong and that application of the rule would work manifest injustice, * * Brown v. Gesellschaft Fur Drahtlose Tel., M. B. H., 1939, 70 App.D.C. 94, 95, 104 F.2d 227, 228. In any event, the law of Delaware would require no different result. The shares of stock involved in the questioned sale were owned - by Donner Corporation and the defendant John C. Folger in respective amounts which will appear. The defendant John Stewart, who participated in the negotiations in behalf of Donner Corporation, was a director of Mayflower as well as president of Donner. Defendant C. Kenneth Baxter, who also acted for Donner, was a director of Mayflower. The defendant Folger was the president and a director of Mayflower. Donner held 194,525 shares and Folger 5,300 shares, their sum constituting a majority of the stock. In these circumstances some of the standards applicable to fiduciary relationships apply to the sale. Twin-Lick Oil Co. v. Marbury, 1875, 91 U.S. 587, 588; 23 L.Ed. 328; Southern Pacific Co. v. Bogert, 1919, 250 U.S. 483, 492, 39 S.Ct. 533, 63 L.Ed. 1099. See, also, Jackson v. Ludeling, 1874, 21 Wall. (88 U.S.) 616, 624, 22 L.Ed. 492; Pepper v. Litton, 1939, 308 U.S. 295, 306, 60 S.Ct. 238, 84 L.Ed. 281. As recently stated by the Supreme Court in Securities and Exchange Comm. v. Chenery Corp., 1943, 318 U.S. 80, 85-86, 63 S.Ct. 454, 87 L.Ed. 626, to say that one is a fiduciary only begins analysis; but, as we held on the prior appeal, one of the consequences in circumstances like the present is that the majority stockholders, “upon whom the minority is dependent for knowledge, must make full disclosure when selling stock control”, citing Sautter v. Fulmer, 1932, 258 N.Y. 107, 179 N.E. 310. Mayflower Hotel Stock. P. C." }, { "docid": "5434743", "title": "", "text": "v. Mayflower Hotel Corp., 84 U.S. App.D.C. at page 282, 173 F.2d at page 423. Fletcher Cyclopedia Corporations, Vol. 13, § 5845, p. 187, was quoted as follows : “A secret and unfair sale of controlling stock may be redressed by suit of the minority.” Fletcher, at the point indicated, cites for support: “Secretly selling controlling shares above par while urging others to sell at par shows fraud. McManus v. Durant, 168 App.Div. 643, 154 N.Y.S. 580. “Where majority stockholders, in violation of -fiduciary duties owing the minority, secure the minority stock on the false representation that a third party has offered a certain price for the company’s stock, and then sell their own stock to such purchaser for more than three times as much, the fact that the sale of the majority stock was attended by certain covenants on the majority stockholders’ part of doubtful and unascertainable value, does not relieve them of the duty of accounting. Sautter v. Fulmer, 258 N.Y. 107, 179 N.E. 310.” Thus the secrecy which condemns ■such a sale is the secrecy of its terms and conditions, not the fact that a sale is to be effected. Hence failure to give prior advice to the minority is not itself a violation of a fiduciary responsibility owed by the majority stockholders. Nevertheless the sale must be shown to have been fair, free of secret or undisclosed arrangements as to price or other considerations different from the terms subsequently made known to all stockholders, and entirely in good faith. The testimony regarding the sale led the trial court to conclude that it “was lawfully made and violated no rights of the minority stockholders of Mayflower.” None of the officers or representatives of Hilton was connected with Mayflower or with the selling stockholders of that corporation. The defendant John P. Binns, who actively participated in the negotiations on behalf of Hilton, had been a director of Mayflower, but his resignation had been accepted October 22, 1945. The negotiations began in September 1946, and the sale was concluded in December. Binns then had been associated with Hilton for" } ]

[ { "docid": "23444667", "title": "", "text": "reject an executory contract, including an unexpired lease of real property, within sixty days after the adjudication or within thirty days after the qualification of the trustee, whichever is later, but the court may for cause shown extend or reduce the time. Any such contract or lease not assumed or rejected within that time shall be deemed to be rejected. If a trustee is not appointed, any such contract or lease shall be deemed to be rejected within thirty days after the date of the order directing that a trustee be not appointed. A trustee shall file, within sixty days after adjudication or within thirty days after he has qualified, whichever is later, unless the court for cause shown extends or reduces the time, a statement under oath showing which, if any, of the contracts of the bankrupt are executory in whole or in part, including unexpired leases of real property, and which, if any, have been rejected by the trustee * * *.” Assuming arguendo, and this question is also one for the district court to decide, that the time period within which the contract must be assumed would not begin to run until the trustee first learned of the contract’s existence, which seemingly occurred on October 16, 1963, it is critical whether the trustee thereafter complied with Section 70(b). It appears that the first written assertion of a claim to the mortgage by Trustee Brown was on February 3, 1964, when Brown filed the Amended Petition for Leave to Compromise Claim. But the Act does not provide any formal manner in which the trustee shall make the assumption, and the assumption of an executory contract may be shown by acts or oral statements of the trustee as well as by formal written declaration. Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82 (8 Cir. 1968); In re Public Ledger, Inc., 161 F.2d 762, 765, n.l (3 Cir. 1947). See also In re Forgee Metal Products, Inc., 229 F.2d 799 (3 Cir. 1956), and In re McCormick Lumber and Mfg. Corp., 144 F.Supp. 804 (D. Or.1956). Such conduct and oral statements" } ]

[ { "docid": "23256696", "title": "", "text": "favored at the expense of other creditors, but the debtor’s prospects for reorganization are severely crippled, since the estate is deprived of one of its prime assets — two highly favorable leases. Because the bankruptcy court erred in requiring By-Rite to obtain court approval of its decision to assume the leases within sixty days of filing its petition, the bankruptcy court’s decision is REVERSED, and this matter is REMANDED to that court for further proceedings consistent with this opinion. IT IS SO ORDERED. . Originally, five leases were involved in this case. However, three of the five have been renegotiated and are not at issue in this appeal. . Since the bankruptcy court’s ruling, the case has been converted to a chapter 7 proceeding, and a trustee has been appointed. .Section 1107 of the Code gives a debtor in possession essentially all of the powers of a trustee. Any reference in this opinion to a chapter 11 trustee also includes a debtor in possession, such as By-Rite. . The appellant disputes the premise that court approval of assumption is always required under the Code, citing United States v. Midwest Serv. & Supply Co. (In re Midwest Serv. & Supply Co.), 44 B.R. 262 (D.Utah 1983). For purposes of this appeal, however, this court will assume that it is. . Cases under the old Bankruptcy Act allowed a trustee in some circumstances to assume an unexpired lease or an executory contract by implication, that is, by conduct short of filing a motion to assume. See, e.g., Vilas & Sommer, Inc. v. Mahony (In re Steelship Corp.), 576 F.2d 128, 132-33 (8th Cir.1978) (assumption implied from the trustee’s knowledge that the other party to the contract was performing in reliance on the contract); Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82, 84-85 (8th Cir.1968) (oral notice to the other party of the trustee’s intent to assume was sufficient); In re McCormick Lumber & Mfg. Corp., 144 F.Supp. 804, 806 (D.Or.1956) (the trustee’s retained possession of machinery sold under a conditional sales contract constituted assumption of the contract). Courts split over whether a trustee" }, { "docid": "22062478", "title": "", "text": "debtor in possession, as here) is free to repudiate without liability the debtor’s executory contracts, expressly including any unexpired leases. 11 U.S.C. § 365(a). But he doesn’t have to repudiate them; he can if he prefers assume them, in which event they are assets of the bankrupt estate. Section 365(d)(4) of the Bankruptcy Code provides, however, that if the trustee or debtor in possession does not either assume or reject an unexpired lease of nonresidential real property of which the debtor is the lessee within sixty days after the filing of the petition for bankruptcy (the statute says, within sixty days after “the order for relief,” but the filing of the petition for bankruptcy is deemed such an order, 11 U.S.C. § 301; In re Elm Inn, Inc., 942 F.2d 630, 633 (9th Cir.1991) — and rightly so, since the automatic stay kicks in then), the lease is deemed rejected and the trustee or debtor must immediately surrender the property to the lessor. The bankruptcy judge can extend the time for this election, at least if he does so within the sixty-day period (the circuits are divided over whether he can do so later). 11 U.S.C. § 365(d)(4); In re American Healthcare Management, Inc., 900 F.2d 827, 829-30 (5th Cir.1990). But there was no extension here. Metropolitan argued that JWA had missed the deadline and therefore that the lease was not a part of the estate in bankruptcy, so naturally the stay had to be lifted. JWA responded by submitting a document which states that JWP Investors had continued since the bankruptcy to receive the monthly rental specified by its lease to JWA and that the parties considered the lease to be continuing. Was this an assumption? Loosely speaking, it was. But it was not executed within the sixty-day period. And no formal motion was filed asking that the bankruptcy judge approve the assumption, as the bankruptcy rules require. Bankr.R. 6006(a), 9014; Sea Harvest Corp. v. Riviera Land Co., 868 F.2d 1077 (9th Cir.1989); In re BDM Corp., 71 B.R. 142 (Bankr.N.D.Ill.1987); In re Austin, 102 B.R. 897, 899 (Bankr.S.D.Ga.1989)." }, { "docid": "23256697", "title": "", "text": "approval of assumption is always required under the Code, citing United States v. Midwest Serv. & Supply Co. (In re Midwest Serv. & Supply Co.), 44 B.R. 262 (D.Utah 1983). For purposes of this appeal, however, this court will assume that it is. . Cases under the old Bankruptcy Act allowed a trustee in some circumstances to assume an unexpired lease or an executory contract by implication, that is, by conduct short of filing a motion to assume. See, e.g., Vilas & Sommer, Inc. v. Mahony (In re Steelship Corp.), 576 F.2d 128, 132-33 (8th Cir.1978) (assumption implied from the trustee’s knowledge that the other party to the contract was performing in reliance on the contract); Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82, 84-85 (8th Cir.1968) (oral notice to the other party of the trustee’s intent to assume was sufficient); In re McCormick Lumber & Mfg. Corp., 144 F.Supp. 804, 806 (D.Or.1956) (the trustee’s retained possession of machinery sold under a conditional sales contract constituted assumption of the contract). Courts split over whether a trustee can still assume a lease or contract by implication under the Code. Comparte In re Ro-An Food Enters. Ltd., 41 B.R. 416, 418 (E.D.N.Y.1984) (recognizing informal assumptions) with Sealy Uptown v. Kelly Lyn Franchise Co. (In re Kelly Lyn Franchise Co.), 26 B.R. 441, 444 (Bankr.M.D.Tenn.) (rejecting the contention that assumption of an unexpired lease can be by implication), approved, 33 B.R. 112 (M.D.Tenn.1983). This court does not reach the question of what actions short of filing a motion to assume, if any, constitute an assumption of the lease, since By-Rite unequivocally expressed its decision to assume by filing a motion to assume. . On request of a party to the lease, the court could shorten the time for making the election. Id. . The situation was especially serious in shopping centers, where a vacancy in one store hurt all the other tenants because of the reduced customer traffic in the center as a whole. In fact, the ámendments to § 365 were meant primarily \"to remedy serious problems caused shopping centers and their solvent" }, { "docid": "1144363", "title": "", "text": "is not applicable to the case at bar. See, Collier on Bankruptcy, II 503.04[I](a)(ii), pp. 503-24-26 and N. 14. (L.King. 15th ed.). Section 365 of title 11 is implemented by Bankr.R. 6006 which provides as follows: Rule 6006. Assumption, Rejection and Assignment of Executory Contracts. (a) Proceeding to Assume, Reject, or Assign. A proceeding to assume, reject, or assign an executory contract, unexpired lease, or time share interest, other than as part of a plan, is governed by Rule 9014. (b) Proceeding to Require Trustee to Act. A proceeding by a party to an executory contract, unexpired, lease, or time share interest in a chapter 9 municipality case, chapter 11 reorganization case, or chapter 13 individual’s debt adjustment case, to require the trustee, debtor in possession, or debtor to determine whether to assume or reject the contract, lease, or time share interest is governed by Rule 9014. (c)Hearing. When a motion is made pursuant to subdivision (a) or (b) of this rule, the court shall set a hearing on notice to the other party to the contract and to other parties in interest as the court may direct. A lease is deemed as rejected where the debtor has failed to file a timely assumption motion despite the fact that the debtor had continued to pay the rent, and was engaged in on-going discussions concerning the assumption or assignment of the lease. In re Treat Fitness Center, Inc., 60 B.R. 878, 879-80 (B.A.P. 9th Cir. 1986). The only method of declaring an intention to assume a lease is by the timely filing of a formal motion. In re Lew Mark Cleaners Corp., 86 B.R. 331, 333 (Bankr.E.D.N.Y.1988). Although the acceptance of rent during the 60 day period is not tantamount to a waiver or estoppel by the landlord of an unexpired lease, a lessor can waive and be estopped by its actions. Id. 86 B.R. at 334-35. Thus, there is no question that based on the record in this case, the subject leases were rejected by the Debtor on October 16, 1990. The Court will begin its analysis of the merits" }, { "docid": "9326673", "title": "", "text": "the lease had been properly assumed and that the assignment itself constituted an informal assumption of the lease. The District Court agreed and held that the Trustee could assume the unexpired lease by action less formal than the Rule 9014 provision for a motion for Court approval. 41 B.R. at 418. The Court is aware of other decisions which support the informal assumption doctrine but declines to follow their reasoning. Rather, this Court is guided by the conclusion reached in Matter of J. Woodson Hays, Inc., 69 B.R. 303, 307 (Bkrtcy.M.D.Fla.1987), where the Court found that before a debtor can obtain approval of an assumption of a nonresidential lease of real property under § 365, it must first file a motion and seek authorization for assumption. [T]his Court is satisfied that to dispense with the requirement to file a written motion as a condition precedent for assuming an unexpired lease would be clearly contrary to the clear intent of the 1984 Amendment of § 365 and would not carry out the stated Congressional intent and certainly would not comply with the requirements of B.R. 6006. Id., at 308. While this Court would like to go as far as to require the filing of a formal motion for assumption in all cases, the Court is aware that at times the doctrines of waiver and estoppel should relieve the parties of formal compliance with Bankruptcy Rules 6006 and 9014. See, Ranch House of Orange-Brevard, Inc. v. Gluckstern, 773 F.2d 1166 (11th Cir.1985); Larkins v. Sills, 377 F.2d 1 (5th Cir.1967). For instance, in Ten-Six Olive v. Curby, 208 F.2d 117 (8th Cir.1953), it was held that a landlord may waive a right to terminate an unexpired lease, not timely assumed or rejected, by acknowledging the continued existence of the lease or by accepting payment of rent after a lease had been otherwise rejected. Said the court: We can see no reason why the lessor may not also waive the right accorded him by the terms of this statute. It is undisputed in the record that appellant indicated by its acts and conduct" }, { "docid": "1157069", "title": "", "text": "period, the lease is deemed to be rejected, and the trustee shall immediately surrender such non-residential real property of the lessor. Section 365(d)(4). Unfortunately, this amendment, just like the original version, failed to spell out either the procedure to assume a nonresidential unexpired lease or furnish any guidelines as to how this assumption is actually accomplished, although it is clear the debtor/tenant may not assume the lease unless authorized by the Court to do so and meets the requirements for assumption set forth in § 365(b)(l)(A)(B) and (C). While the general legislative history of BAFJA is somewhat vague and unspecific, the original version of this section dealt with this subject. The House Report accompanying H.R. 8200, the Bill which ultimately in the modified version was enacted into law as the Bankruptcy Reform Act of 1978, Pub.L. No. 95-598 92, Stat. 2549 indicates that one of the matters which was to be dealt with by Rules was the “procedure for court approval of trustee’s assumption or rejection of executory contracts or unexpired leases, including the method of initiating such approval and any notice required”. H.R. 95-595, 95th Cong., 1st Sess. 295 (1977) Appendix I (59), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6252. Pursuant to this directive by Congress, the Supreme Court promulgated and Congress approved Bankruptcy Rules on practice and procedure including Bankruptcy Rule 6006. This Rule provides that the procedure to assume a lease is a contested matter governed by Bankruptcy Rule 9014 and in turn by Bankruptcy Rule 9013. This Rule requires that any request for an order unless when an application is authorized, shall be by written motion. Thus, it is evident that before a Debtor can obtain an approval of an assumption of a non-residential lease of real property, which as a condition precedent to the Court approval required by § 365(a), it must file a motion and seek authorization for assumption. While it is true that this Rule fails to provide and fix a bar date to file the motion, the Rule leaves no doubt that no assumption can be effective absent a motion for" }, { "docid": "3582620", "title": "", "text": "Revco’s intention to reject the Sublease, this Court will not adopt the position of reviewing Revco’s conduct to attempt to judge the meaning of such conduct whenever the issue of an informal rejection or assumption of a lease is raised. Indeed, section 365(a) was drafted to remedy this problem. In re A.H. Robins Co., Inc., 68 B.R. 705, 708, 710 (Bankr.E.D.Va. 1986). The court in Treat Fitness Center stated on p. 879: We read 11 U.S.C. § 365 together with Bankruptcy Rule 6006 to require that the debtor or trustee file a formal motion to assume, thus overruling cases under the former Bankruptcy Act that required courts to judge whether words or deeds, often ambiguous at best, constituted an assumption or rejection of a lease or executory contract. See, also, Kelly Lyn, supra, at p. 444, wherein the debtor, relying on case law under the old Bankruptcy Act, contended that assumption of an unexpired lease can be accomplished by implication. The court rejected debtor’s contention and stated “even under the Act, the majority rule and the better rule was that judicial approval was required before allowing the assumption or rejection of an unexpired lease”; In re D’Lites of America, Inc., 86 B.R. 299, 302 (Bankr.N.D.Ga.1988) (follows majority rule that lease cannot be assumed by conduct); In re OK Kwi Lynn Candles, Inc., 75 B.R. 97, 100 (Bankr.N.D.Ohio 1987) (rejecting debtor’s assertion that assumption of lease may occur “through ways other than formal notice”). POLICY CONSIDERATIONS While the clear language of section 365(a) and supporting case law establish that an unexpired lease is not rejected until Bankruptcy Court approval this Court further notes important policy considerations that support this view as well. The differences between former Bankruptcy Rule 607 and current Bankruptcy Rules 6006(a) and 9014 evidence Con gressional intent to strengthen the role of the court in the assumption/rejection decision making process. Swiss Hot Dog Co. v. Vail Village Inn, Inc., (In re Swiss Hot Dog Co.), 72 B.R. 569, 573 (D.Colo.1987). This Court agrees with the policy considerations noted in Swiss Hot Dog, at 573, “Court approval” is now" }, { "docid": "22920781", "title": "", "text": "507 (Bkrtcy.E.D.N.Y.1982); In re Avery Arnold Construction, Inc., 11 B.R. 34, 35 (Bkrtcy.S.D.Fla.1981). This view was held inapplicable to cases under Section 365 in a well-reasoned opinion by the Bankruptcy Court for the Middle District of Tennessee. In In re Kelly Lyn Franchise Co., supra, 26 B.R. at 444-45, Judge Lundin writes: The court rejects debtor’s contention that the assumption of an unexpired lease can be accomplished by implication. Debtor relies upon cases decided under the old Bankruptcy Act which held that because “the Act does not provide any formal manner in which the trustee shall make the assumption, ... as well as by formal written declaration.” In re Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82, 84-85 (8th Cir.1968). See also In re Steelship Corp., 576 F.2d 128, 132 (8th Cir.1978); Brown v. Presbyterian Ministers Fund, 484 F.2d 998, 1007 (3rd Cir.1973); In re McCormick Lumber Manufacturing Corp., 144 F.Supp. 804 (D.Or.1956). Debtor argues that its actions, specifically its tendering of October rent, manifested an actual assumption of the lease. The court finds, however, that even under the Act, the majority rule and the better rule was that judicial approval was required before allowing the assumption or rejection of an unexpired lease. Local Joint Executive Board, AFL-CIO v. Hotel Circle, Inc., 419 F.Supp. 778 [(D.C.Cal.1976)] aff'd 613 F.2d 210 (9th Cir.1980). See also Bradshaw v. Loveless (In re American National Trust), 426 F.2d 1059, 1064 (7th Cir.1970); Texas Importing Co. v. Banco Popular de Puerto Rico, 360 F.2d 582 (5th Cir.1966). Assumption or rejection by implication or by action leads inevitably to the kind of confusion and uncertainty exemplified by this case. Moreover, the explicit requirement of court approval is now clear under the language of § 365(a) of the Code. s}c sfc sk sk sk sk Section 365(a) makes clear that an assumption of an executory contract “can only be effected through an express order of the court.” 2 L.King, COLLIER ON BANKRUPTCY § 365.03 at 365-21 (15th ed.1982). As the court correctly stated in Frank C. Videon, Inc. v. Marpie Publishing Co., 20 B.R. 933 (Bkrtcy.E.D.Pa.1982); “[a]ny assumption" }, { "docid": "1157066", "title": "", "text": "assume the lease to the landlord. Second, if the actions of the Debtor did not constitute an effective assumption, Village East has either waived its right to a forfeiture or in any event, it is estopped to assert a forfeiture of the lease by its conduct. Third, it is the contention of the Debtor that based on § 105 of the Bankruptcy Code, this Court should use its equitable powers and permit the Debtor to seek an assumption of the lease. Fourth, in any event, so contends the Debtor, that the Debtor and Village East entered into a valid and enforceable contract after the expiration of the 60-day period whereby it was agreed by the parties to allow the Debtor to assume the lease or in any event, even if the lease was terminated, to renew the terminated lease for an additional term. Under the Bankruptcy Act, the overwhelming weight of authority was that the act of assumption by a trustee could be other than the filing of a formal written motion. In re Huntington Limited, 654 F.2d 578, 587 (9th Cir.1981); In re Steelship Corp., 576 F.2d 128, 132-33 (8th Cir.1978); Brown v. Presbyterian Ministers Fund, 484 F.2d 998 (3rd Cir.1973); Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82 (8th Cir.1968); In re Forgee Metal Products, Inc., 229 F.2d 799, 801 (3rd Cir.1956). One commentator dealing with this subject stated: Assumption of a contract is an act requiring notification of the party concerned. The trustee cannot assume merely in his own mind. He must notify the other party.... No particular form of notification is provided. A written or even an oral notice should be deemed sufficient. 4B Collier on Bankruptcy, If 70.42[6], at 533 (14th ed. 1976). The subject of executory contracts and unexpired leases is dealt with by § 365 of the Bankruptcy Code enacted by the Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549. While this Section adopted almost verbatim the language of § 70(b) of the Bankruptcy Act of 1898 and provided a 60-day period for the trustee to assume an executory contract or" }, { "docid": "4642200", "title": "", "text": "Bon Ton expressed its unambiguous and unconditional intention to assume its unexpired lease by filing a motion within 60 days, the court did not have to determine whether any action short of filing a motion to assume would suffice to unequivocally declare a trustee’s intention to assume. Although section 365(a) does not set forth the manner in which the trustee is required to seek court approval, Bankruptcy Rule 6006 states that a proceeding to assume or reject is governed by Bankruptcy Rule 9014. Bankruptcy Rule 9014, in turn, sets forth that the relief shall be requested by motion with reasonable notice and an opportunity for hearing afforded to the opposing party. Based on a reading of section 365 in its entirety, together with the language of Bankruptcy Rules 6006 and 9014, and the analysis of recent authority, this court concludes that the only method of declaring an intention to assume is by filing a formal motion to assume within 60 days of the order for relief and that failure to do so will result in the lease being deemed rejected by operation of law. As the 9th Circuit Bankruptcy Appellate Panel recently stated in In re Treat Fitness Center, 60 B.R. 878, 14 BCD 632 (9th Cir.BAP 1986): To not follow these rather explicit rules would be to lead us back into the morass of attempting to judge the meaning and import of the conduct and conversations of the parties. Id. at 879, 14 BCD at 633. That is precisely the type of situation this court is presently faced with as to what was said and meant by the debtor at the first meeting of creditors. Assumption by implication or action, rather than by filing a formal motion, “inevitably leads to the confusion and uncertainty exemplified by this case.” In re Kelly Lyn Franchise Co., Inc., 26 B.R. 441, 444 (Bankr.M.D.Tenn.1983). With respect to the lessor’s acceptance of rent payments, such actions cannot constitute a waiver of the lessor’s rights under section 365(d)(4) and section 365(d)(3) expressly so provides. See In re Las Margaritas, Inc., 54 B.R. 98, 100 (Bankr.D.Nev.1985);" }, { "docid": "18731030", "title": "", "text": "appeal to this Court is whether the Trustee can be held to have rejected or assumed the unexpired lease for the Broadway premises under the facts presented. I. The Bankruptcy Code provides that the trustee, subject to the court’s approval, may assume or reject any executory contract or unexpired lease of the debtor. 11 U.S.C. Section 365(a). It specifies that under Chapter 7, if the trustee does not assume or reject an executory contract or unexpired lease of the debtor within 60 days after the order for relief, or within such additional time as the court, for cause, within such 60-day period, fixes, then such contract or lease is deemed rejected. 11 U.S.C. Section 365(d)(1). As Judge Ra-doyevich pointed out in his Decision of January 31, 1984, the Bankruptcy Code does not specify any particular manner in which a lease is assumed or rejected, except to say that it is subject to court approval. Nor do the Bankruptcy Rules provide greater guidance. Rule 6006(a) of the Bankruptcy Rules declares that a proceeding “to assume, reject or assign” an unexpired lease is governed by Rule 9014, and subsection (c) of Rule 6006 provides for hearing and notice. Rule 9014 sets out motion and notice requirements. As Judge Radoyevich observed, it is unclear whether assumption is by motion and hearing before the court or the Trustee may assume the lease by less formal acts and then gain court approval. Judge Radoyevich did not decide that question, but held that the Trustee had not acted to assume the lease with a clearly manifested unequivocal intent. This Court concludes that the Trustee can assume the unexpired lease by action less formal than the Rule 9014 provision for a motion for court approval. In construing the nearly identical language of Section 70(b) of the earlier Bankruptcy Act, Courts of Appeals for two circuits held that informal acts of assumption, including oral notice, are sufficient. Brown v. Presbytarian Ministers Fund, 484 F.2d 998, 1007 (3rd Cir.1973); Nostromo v. Fahrenkrog, 388 F.2d 82 (8th Cir.1968). This approach to the assumption provision has been specifically adopted under the" }, { "docid": "23679014", "title": "", "text": "because “the Act does not provide any formal manner in which the trustee shall make the assumption, ... the assumption of an executory contract may be shown by acts or oral statements ... as well as by formal written declaration.” Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82, 84-85 (8th Cir.1968). See also In re Steelship Corp., 576 F.2d 128, 132 (8th Cir.1978); Brown v. Presbyterian Ministers Fund, 484 F.2d 998, 1007 (3rd Cir.1973); In re McCormick Lumber Manufacturing Corp., 144 F.Supp. 804 (D.Or.1956). Debtor argues that its actions, specifically its tendering of October rent, manifested an actual assumption of the lease. The court finds, however, that even under the Act, the majority rule and the better rule was that judicial approval was required before allowing the assumption or rejection of an unexpired lease. Local Joint Executive Board, AFL-CIO v. Hotel Circle, Inc., 419 F.Supp. 778 aff’d 613 F.2d 210 (9th Cir.1980). See also Bradshaw v. Loveless (In re American National Trust), 426 F.2d 1059, 1064 (7th Cir.1970); Texas Importing Co. v. Banco Popular de Puerto Rico, 360 F.2d 582, 584 (5th Cir.1966); Siegel v. Schulte (In re Wil-low Cafeterias, Inc.), 111 F.2d 83 (2d Cir.1940). Assumption or rejection by implication or by action leads inevitably to the kind of confusion and uncertainty exemplified by this case. Moreover, the explicit requirement of court approval is now clear under the language of § 365(a) of the Code. 11 U.S.C.A. § 365(a) (West 1979) provides that “[ejxcept as provided in Sections 765 and 766 of this title and in subsections (b), (c), and (d) of this section, the trustee, subject to the court’s approval, may assume or reject any executory contract or unexpired lease of the debtor.” (emphasis added.) Thus, any uncertainty which may have existed under the Act concerning the requirement for court approval of assumption or rejection is no longer a serious issue under 11 U.S.C.A. § 365 (West 1979). Section 365(a) makes clear that an assumption of an executory contract “can only be effected through an express order of the court.” 2 L. King, Collier on Bankruptcy ¶ 365.03 at" }, { "docid": "20097559", "title": "", "text": "precedent to the trustee’s action. Arranging matters in this sequence facilitates judicial oversight, minimizes false starts, and enhances the efficiency of the process. We can think of no convincing reason why Congress would abruptly depart from this tried-and-true formula. More importantly, we are confident that if Congress wished to inaugurate so radical a change, it would have taken pains to mark the trail brightly. A second reason for reading section 365(a) to require judicial approval as a condition precedent to rejection of a nonresidential lease is rooted in history. Congress enacted section 365(a) as part of the Bankruptcy Code of 1978, making court approval of such rejections obligatory for the first time. The predecessor to section 365(a), section 70(b) of the Bankruptcy Act of 1898, 11 U.S.C. § 110(b) (repealed 1978), and the applicable bankruptcy rule governing actions taken pursuant to section 70(b), Fed.R.Bankr.P. 607 (repealed 1978), did not explicitly require judicial approval of a trustee’s rejection of a lease, and many courts held that the trustee, acting alone, could make a rejection stick. See, e.g., Vilas & Sommer, Inc. v. Mahony (In re Steelship Corp.), 576 F.2d 128, 132 (8th Cir.1978). The conclusion is irresistible that Congress, by changing the protocol in 1978, intended to involve bankruptcy courts more actively in the decisional process. We believe that this policy of increased involvement is better served by viewing judicial approval as a condition precedent to the effectiveness of a rejection instead of as a condition subsequent. In a related vein, we note that several courts have found support for requiring court approval as a condition precedent to rejection in two extant rules of bankruptcy procedure, namely, Fed.R.Bankr.P. 6006 and 9014. See, e.g., Revco, 109 B.R. at 268. Read together, these rules require a trustee who desires to reject a lease to file a formal motion to that effect. This, too, constitutes an innovation for, previously, the rules did not provide a formal procedure for rejecting leases. We think this is another sign that Congress intended courts to become more involved in the decisional process, and, thus, reinforces our vision of" }, { "docid": "22920780", "title": "", "text": "or unexpired lease].” The absence of a generally recognized procedure for assumption under the former Bankruptcy Act and Rules of Bankruptcy Procedure resulted in some courts holding that informal acts of the trustee without court approval could constitute assumption. “An assumption [could] be shown by word or by deed consistent with the conclusion that the trustee intend ed to assume.” In re Steelship Corp., 576 F.2d 128, 132 (8th Cir.1982). See also Allan Construction Co., Inc. v. United States, 646 F.2d 487, 493, 227 Ct.Cl. 193 (1981); Brown v. Presbyterian Ministers Fund, 484 F.2d 998, 1007 (3d Cir.1973); Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82, 84-85 (8th Cir.1968); In re For gee Metal Products, 229 F.2d 799, 801-02 (3d Cir.1956); In re Texas & New Orleans Railroad Co. v. Phillips, 196 F.2d 692, 695 (5th Cir.1952); In re Ro-An Food Enterprises, Ltd., 41 B.R. 416 (E.D.N.Y.1984); In re Electrospace Corp., 39 B.R. 632, 641 & n.13 (S.D.N.Y.1984); In re Hawaii Daiichi-Kanko, Inc., 24 B.R. 163, 166 (Bkrtcy.D.Haw.1982); In re Sapolin Paints, Inc., 20 B.R. 497, 507 (Bkrtcy.E.D.N.Y.1982); In re Avery Arnold Construction, Inc., 11 B.R. 34, 35 (Bkrtcy.S.D.Fla.1981). This view was held inapplicable to cases under Section 365 in a well-reasoned opinion by the Bankruptcy Court for the Middle District of Tennessee. In In re Kelly Lyn Franchise Co., supra, 26 B.R. at 444-45, Judge Lundin writes: The court rejects debtor’s contention that the assumption of an unexpired lease can be accomplished by implication. Debtor relies upon cases decided under the old Bankruptcy Act which held that because “the Act does not provide any formal manner in which the trustee shall make the assumption, ... as well as by formal written declaration.” In re Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82, 84-85 (8th Cir.1968). See also In re Steelship Corp., 576 F.2d 128, 132 (8th Cir.1978); Brown v. Presbyterian Ministers Fund, 484 F.2d 998, 1007 (3rd Cir.1973); In re McCormick Lumber Manufacturing Corp., 144 F.Supp. 804 (D.Or.1956). Debtor argues that its actions, specifically its tendering of October rent, manifested an actual assumption of the lease. The court finds, however, that" }, { "docid": "3582619", "title": "", "text": "pre-condition to any assumption or rejection of an unexpired lease: 11 U.S.C. § 365 specifically states that the trustee, subject to court approval, may assume or reject an executory contract. Bankruptcy Rule 6006 states that a proceeding to assume or reject an exec-utory contract or unexpired lease is governed by Bankruptcy Rule 9014 which in turn states that relief shall be requested by motion and reasonable notice and opportunity for a hearing shall be afforded to the opposing party. To not follow these rather explicit rules would be to lead us back into the morass of attempting to judge the meaning and import of the conduct and conversations of the parties. An application of the facts of the instant matter to the unequivocal language of section 365(a), as well as the wealth of case law interpreting said section, establishes to this Court that the rejection of the Sublease occurred on December 13, 1988, upon this Court’s order approving the rejection. Although the Rejection Letter sent to Kandist may be described as a clear communication of Revco’s intention to reject the Sublease, this Court will not adopt the position of reviewing Revco’s conduct to attempt to judge the meaning of such conduct whenever the issue of an informal rejection or assumption of a lease is raised. Indeed, section 365(a) was drafted to remedy this problem. In re A.H. Robins Co., Inc., 68 B.R. 705, 708, 710 (Bankr.E.D.Va. 1986). The court in Treat Fitness Center stated on p. 879: We read 11 U.S.C. § 365 together with Bankruptcy Rule 6006 to require that the debtor or trustee file a formal motion to assume, thus overruling cases under the former Bankruptcy Act that required courts to judge whether words or deeds, often ambiguous at best, constituted an assumption or rejection of a lease or executory contract. See, also, Kelly Lyn, supra, at p. 444, wherein the debtor, relying on case law under the old Bankruptcy Act, contended that assumption of an unexpired lease can be accomplished by implication. The court rejected debtor’s contention and stated “even under the Act, the majority rule and" }, { "docid": "23676482", "title": "", "text": "under such section; See, also, In re Alexander, 670 F.2d 885, 887 (9th Cir.1982); and In re Zeller, 38 B.R. 739, 740 (9th Cir. BAP 1984). Lease assumption under § 1322(b)(7) is subject to § 365 of the Code. Section 365(d)(4) fixes the time within which an unexpired non-residential lease must be either assumed or rejected. 11 U.S.C. § 365(d)(4) provides, in pertinent part: [I]n a case under any chapter of this title, if the trustee does not assume or reject an unexpired lease of nonresidential real property under which the debtor is the lessee within 60 days after the date of the order for relief, or within such additional time as the court, for cause, within such 60-day period, fixes, then such lease is deemed rejected, and the trustee shall immediately surrender such nonresidental real property to the lessor. 11 U.S.C. § 365(a) requires court approval for assumption or rejection of an unexpired lease. Bankruptcy Rules 9013 and 9014 require that a request for an order (other than relief requiring an adversary proceeding under Bankruptcy Rule 7001) shall be by motion. A motion is -“made” when served on the opposing party. In re Sonoma V, 703 F.2d 429 (9th Cir.1983). Service is complete upon mailing. Bankruptcy Rule 9006(e). On March 12, 1985, the Clerk of the Bankruptcy Court caused an Order for Meeting of Creditors, Combined with Notice Thereof and of Automatic Stay, to be served on all creditors, including Calflor Grove, N.V. Under the caption “Summary of Proposed Plan” that notice stated: Debtor’s Chapter 13 proposed plan for treatment of debts is on file at court and is a public record. Creditors must refer to the plan for precise details_ [U]na-ble to adequately summarize debtor’s proposed plan. Each creditor is advised to contact the attorney for debtor and request a true copy of debtor’s proposed plan to determine how the plan might affect each creditor. The provision in debtor’s plan assuming the lease sufficiently satisfied the debtor’s burden on lease assumption under Chapter 13. Section 365(d)(4) was clearly intended by Congress to protect lessors from delay and uncertainty" }, { "docid": "9326672", "title": "", "text": "reaching its decision, the Court relied upon an interpretation of § 70(b) of the former Bankruptcy Act found in Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82, 85 (5th Cir.1968) wherein the Nostromo court stated: Since the statute does not specify any written notice of assumption, we cannot engraft any formalities into the statute, and we know of no good reason why oral notice of assumption as was made in this case does not suffice. Id. at 85. However, the Court suggests: The Trustee’s election to assume or reject an executory contract ought to be in unconditional and unambiguous written form filed with this Court and served upon the affected party. In re Avery Arnold Construction, Inc., 11 B.R. 34, 35 (Bkrtey.S.D.Fla.1981). Like Avery, the Ro-An court was compelled to reach a similar conclusion. At issue in that case was the validity of an assignment of a lease to a third party. That issue was in turn contingent upon a finding of whether the lease had been properly assumed under § 365(d)(1). The trustee maintained that the lease had been properly assumed and that the assignment itself constituted an informal assumption of the lease. The District Court agreed and held that the Trustee could assume the unexpired lease by action less formal than the Rule 9014 provision for a motion for Court approval. 41 B.R. at 418. The Court is aware of other decisions which support the informal assumption doctrine but declines to follow their reasoning. Rather, this Court is guided by the conclusion reached in Matter of J. Woodson Hays, Inc., 69 B.R. 303, 307 (Bkrtcy.M.D.Fla.1987), where the Court found that before a debtor can obtain approval of an assumption of a nonresidential lease of real property under § 365, it must first file a motion and seek authorization for assumption. [T]his Court is satisfied that to dispense with the requirement to file a written motion as a condition precedent for assuming an unexpired lease would be clearly contrary to the clear intent of the 1984 Amendment of § 365 and would not carry out the stated Congressional intent and" }, { "docid": "12066756", "title": "", "text": "to the court’s approval. 11 U.S.C. § 365(a); In re Harris Management Co., Inc., 791 F.2d 1412, 1414-15 (9th Cir.1986). The purpose of this legislation was to protect lessors (particularly shopping center operators) from delay and uncertainty by forcing a trustee or a debtor in possession to decide quickly whether to assume unexpired leases. Moreggia, 852 F.2d at 1185. The legislation also protects the bankrupt estate from unexpected liability through a statutory presumption of rejection unless the trustee or debtor in possession acts affirmatively to bring an unexpired lease into the estate. Id. Debtors’ petition for Chapter 11 bankruptcy, filed on August 27, 1986, constituted relief under 11 U.S.C. § 301 and so commenced the 60-day period. 11 U.S.C. § 365(d)(4); Victoria Station, 840 F.2d at 684. This period expired on October 26, 1986, a Sunday, but pursuant to Bankruptcy Rule 9006(a), Debtors had until the following Monday, October 27, 1986, to assume the lease. See Victoria Station, 840 F.2d at 684. Bankruptcy Rule 6006(a) provides that a proceeding to assume or reject a lease is governed by Bankruptcy Rule 9014. Rule 9014 states that relief shall be requested by motion, with reasonable notice and opportunity for a hearing afforded to the opposing party. A motion must “state with particularity the grounds therefor, and ... set forth the relief or order sought.” Bankruptcy Rule 9013. Rule 9013 also specifies that every written motion (except those which may be considered ex parte) must be served on the trustee or the debtor in possession and on any entities specified by the Bankruptcy Rules. Id. Thus, these rules plainly specify that a debtor in possession must file a formal motion and provide reasonable notice and an opportunity for a hearing to the opposing party. The documents entitled “Affirmation and Assumption of Executory Contracts” filed by Debtors did not constitute formal motions. These documents did not move the court to do anything; they simply informed the court of the Debtors’ intentions. The documents were not even entitled motions. Nor did these documents state any grounds for the assumption, let alone state grounds with particularity." }, { "docid": "18731031", "title": "", "text": "or assign” an unexpired lease is governed by Rule 9014, and subsection (c) of Rule 6006 provides for hearing and notice. Rule 9014 sets out motion and notice requirements. As Judge Radoyevich observed, it is unclear whether assumption is by motion and hearing before the court or the Trustee may assume the lease by less formal acts and then gain court approval. Judge Radoyevich did not decide that question, but held that the Trustee had not acted to assume the lease with a clearly manifested unequivocal intent. This Court concludes that the Trustee can assume the unexpired lease by action less formal than the Rule 9014 provision for a motion for court approval. In construing the nearly identical language of Section 70(b) of the earlier Bankruptcy Act, Courts of Appeals for two circuits held that informal acts of assumption, including oral notice, are sufficient. Brown v. Presbytarian Ministers Fund, 484 F.2d 998, 1007 (3rd Cir.1973); Nostromo v. Fahrenkrog, 388 F.2d 82 (8th Cir.1968). This approach to the assumption provision has been specifically adopted under the similar provision of the present Bankruptcy Code. In re Avery Arnold Construction, Inc., 11 B.R. 34 (Bankr.S.D.Fla.1981). Moreover, while less than formal acts of assumption do not obviate the need for court approval under the former Bankruptcy Act and Bankruptcy Code, they do serve to give notice and preclude deeming the lease rejected by inaction under 11 U.S.C. Section 365(d)(1). II. Judge Radoyevich found that there had been only equivocal acts and expressions of uncertainty as to the value and validity of the lease by the Trustee in proceedings before the Bankruptcy Court. Therefore, he reasoned, there was no basis for the contention of assumption of the lease by act or oral notice. Were the circumstances of this case different this Court would agree with Judge Radoyevich’s conclusion. The sum of the odd twists and turns in the facts and proceedings in this case, however, make Judge Radoyevich’s result more than a little troubling. This Court is particularly struck by the way matters rapidly devolved from unclear to confused over the course of five hearings," }, { "docid": "22920779", "title": "", "text": "on the reasonable value of the use and occupancy of the premises might have to await payment with other administrative claims at a later date. The new provisions require the debtor in possession or trustee to “timely perform” all obligations under the lease of nonresidential real property notwithstanding Section 503(b)(1). 11 U.S.C. § 365(d)(3). Moreover, upon rejection, the debtor in possession or trustee must “immediately surrender” the property to the lessor. 11 U.S.C. § 365(d)(4). What Constitutes Assumption Under Section 365(d)(4)? Section 365 of the Bankruptcy Code, as enacted in 1978 and amended in 1984, represents a significant departure from its predecessor, Section 70b of the Bankruptcy Act, 11 U.S.C. § 110(b) (repealed). Under Section 70b there was a split of authority on the question of whether assumption of an unexpired lease required court approval. In re Kelly Lyn Franchise Co., supra, 26 B.R. at 444. Former Bankruptcy Rule 607, which took effect on October 1, 1973, stated that “[wjhenever practicable, the trustee shall obtain approval of the court before he assumes [an executory contract or unexpired lease].” The absence of a generally recognized procedure for assumption under the former Bankruptcy Act and Rules of Bankruptcy Procedure resulted in some courts holding that informal acts of the trustee without court approval could constitute assumption. “An assumption [could] be shown by word or by deed consistent with the conclusion that the trustee intend ed to assume.” In re Steelship Corp., 576 F.2d 128, 132 (8th Cir.1982). See also Allan Construction Co., Inc. v. United States, 646 F.2d 487, 493, 227 Ct.Cl. 193 (1981); Brown v. Presbyterian Ministers Fund, 484 F.2d 998, 1007 (3d Cir.1973); Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82, 84-85 (8th Cir.1968); In re For gee Metal Products, 229 F.2d 799, 801-02 (3d Cir.1956); In re Texas & New Orleans Railroad Co. v. Phillips, 196 F.2d 692, 695 (5th Cir.1952); In re Ro-An Food Enterprises, Ltd., 41 B.R. 416 (E.D.N.Y.1984); In re Electrospace Corp., 39 B.R. 632, 641 & n.13 (S.D.N.Y.1984); In re Hawaii Daiichi-Kanko, Inc., 24 B.R. 163, 166 (Bkrtcy.D.Haw.1982); In re Sapolin Paints, Inc., 20 B.R. 497," } ]

[ { "docid": "21392051", "title": "", "text": "of suffering future persecution.” This background information, namely the State Department country reports — which note only minimal political violence and retaliation in present-day, post-Communist Albania — refute the contention that his family would be harmed in the future if they returned to Albania. This finding is relevant to Cuko’s failure to prove a well-founded fear of future persecution. Even if Cuko had shown he suffered past persecution, which he did not, the IJ’s reliance on the State Department reports was sufficient to “rebut[ ] the presumption of a well-founded fear of future persecution arising from allegations of past persecution based on support for the Democratic Party.” Gjiknuri v. Mukasey, No. 07-1328, 2008 WL 132130, at *3 (1st Cir. Jan.15, 2008); Alibeaj v. Gonzales, 469 F.3d 188, 192-93 (1st Cir.2006); Tota v. Gonzales, 457 F.3d 161, 167 (1st Cir.2006). The record does not compel a contrary conclusion. In any event, the adverse credibility determination defeats the petitioner’s asylum claim. See Dine v. Gonzales, 464 F.3d 89, 93 (1st Cir.2006) (“[Wjhen a petitioner’s case depends on the veracity of ... testimony, a fully supported adverse credibility determination, without more, can sustain a denial of asylum.” (quoting Olujoke v. Gonzales, 411 F.3d 16, 22 (1st Cir.2005)) (internal quotation marks omitted)). The denial of Cuko’s asylum claim also effectively disposes of his withholding of removal claim. See Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir.2004) (“A claim for withholding of deportation demands that the alien carry a more stringent burden of proof than does an asylum claim. Thus, if an alien cannot establish asylum eligibility, his claim for withholding of deportation fails a fortio-ri.”). In this case, the petitioner’s brief does not advance any arguments specific to his CAT claim. To the extent that the claim is not waived, see Dine, 464 F.3d at 93, Cuko’s CAT claim was predicated on the veracity of his testimony and the current Albanian political climate, and so this claim, too, fails. B. The Conduct of the Immigration Judge Cuko makes a perfunctory argument that the IJ overstepped his authority by assuming the role of a" } ]

[ { "docid": "22130557", "title": "", "text": "status. On June 10, 2005, the BIA affirmed the IJ’s denial of Gabuniya’s application for asylum, withholding of removal, and protection under the CAT, finding that the IJ correctly ruled that Gabuniya was not credible and failed to meet his burden of proof. The BIA also denied the motion for a remand as being without merit, but provided no further explanation. II. Analysis A. Applicable law The Attorney General may “not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231. In order to be eligible for withholding of removal, Gabuniya must demon strate a clear probability of persecution— in other words, that it is more likely than not that he will be persecuted if he returns to Georgia. See Toure v. Attorney Gen., 443 F.3d 310, 317 (3d Cir.2006). Similarly, to qualify for relief under the CAT, Gabu-niya must demonstrate that it is more likely than not that he will be tortured if he is removed to Georgia. 8 C.F.R. § 208.16(c)(2) (2006); Toure, 443 F.3d at 317. Gabuniya argues that he is entitled to withholding of removal and protection under the CAT because of the persecution he faced at the hands of the Georgian government. An applicant who establishes past persecution is entitled to a presumption that his life or freedom will be threatened if he returns. See 8 C.F.R. § 208.16(b)(1). We have defined persecution as “ ‘threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.’ ” Li v. Attorney Gen., 400 F.3d 157, 167 (3d Cir.2005) (citation omitted). Similarly, evidence that the applicant has been tortured in the past is to be considered in an application for protection under the CAT. 8 C.F.R. § 208.16(c)(3)(i). Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from" }, { "docid": "19802030", "title": "", "text": "peaceful elections had been held in 2005, that the leader of the Democratic Party had become prime minister, that the Democratic Party controlled parliament with 81 of 140 seats, and that the political parties had ceased abuse or coercion of political opponents. The reports provided no evidence of present systemic political persecution in Albania. Because Nako had not met the lesser burden for asylum, his claim for withholding of removal necessarily failed. The IJ also denied CAT protection after finding that Nako had failed to show a likelihood he would be tortured in Albania, and ordered petitioners removed to Albania. On August 27, 2009, the BIA adopted and affirmed the IJ’s denial of asylum on the basis of changed country conditions in Albania. The BIA rejected Nako’s claim on appeal that the IJ failed to give sufficient weight to record evidence of country conditions, finding that the 2006 State Department Country Report and Asylum Profile were “probative evidence” of changed conditions. The BIA affirmed the IJ’s rejection of withholding of removal and also affirmed the denial of CAT protection because Nako had not shown he would likely be tortured in Albania. II. When, as here, the BIA adopts and affirms part of the IJ’s ruling and further justifies the IJ’s conclusions, we review both the BIA’s and IJ’s opinions. Weng v. Holder, 593 F.3d 66, 71 (1st Cir.2010). An alien’s eligibility for asylum depends on satisfying his burden to show that he is a “refugee,” 8 U.S.C. § 1158(b)(1)(A) & (B), meaning that he “ ‘has suffered past persecution or has a well-founded fear of future persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Anacassus v. Holder, 602 F.3d 14, 19 (1st Cir.2010) (quoting Decky v. Holder, 587 F.3d 104, 110 (1st Cir.2009)); see also 8 U.S.C. § 1101(a)(42)(A). If the applicant carries his burden of showing past persecution, he “shall also be presumed to have a well-founded fear of persecution on the basis of the original claim.” 8 C.F.R. § 1208.13(b)(1). The government can overcome this presumption by showing," }, { "docid": "23212925", "title": "", "text": "an alien establishes past persecution under one of the qualifying grounds, there is a presumption of a well-founded fear of future persecution on the same ground. Francois, 283 F.3d at 930; 8 C.F.R. § 208.13(b)(1). The government may rebut this presumption by showing a fundamental change in circumstances in the alien’s home country by a preponderance of the evidence. Francois, 283 F.3d at 930-31; Perinpanathan, 310 F.3d at 598; 8 C.F.R. §§ 208.13(b)(l)(i)(A) and (B). An application for asylum automatically includes a.request for withholding of removal. 8 C.F.R. § 1208.3(b); see INS v. Stevic, 467 U.S. 407, 420 n. 13, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). An alien may not be removed if the alien shows there is a clear probability that his “life, - or freedom would be threatened in [the alien’s] country because of the alien’s race, religion, nationality, membership in a particular social group or political opinion.” 8 U.S.C. § 1231(b)(3)(A)(1999); Ngure v. Ashcroft, 367 F.3d 975, 989 (8th Cir.2004). The standard for withholding of removal, a clear probability of persecution, is more rigorous than the well-founded fear standard for asylum. Rife v. Ashcroft, 374 F.3d. 606, 613 (8th Cir.2004); Wondmneh v. Ashcroft, 361 F.3d 1096, 1099 (8th Cir.2004). An alien who fails to prove eligibility for asylum cannot meet the standard for establishing withholding of removal. Ngure, 367 F.3d at 992. Under CAT, an alien must show that “it is more likely than not that he [ ] would.be tortured if returned to the proposed country of removal.” Ngure, 367 F.3d at 992 (citing Perinpanathan, 310 F.3d at 599); 8 C.F.R. § 208.16(c)(2). In determining eligibility under CAT, “all evidence relevant to the possibility of future torture should be considered including but not limited to: past torture inflicted upon the applicant; the applicant’s ability to relocate to another area of the country where torture is unlikely; and gross, flagrant, or mass violations of human rights.” Ngure, 367 F.3d at 992; 8 C.F.R. § 208.16(c)(3). C. Persecution Based on Turay’s Imputed Political Opinion Turay first attempts to show past persecution. Turay contends that he was persecuted" }, { "docid": "19944064", "title": "", "text": "contrary. Id. at 87. II. The INA bars any court from exercising jurisdiction over a determination by the Attorney General regarding the satisfaction of the timeliness requirement for asylum applications. 8 U.S.C. § 1158(a)(3); see also Stroni, 454 F.3d at 87; Sharari v. Gonzales, 407 F.3d 467, 473 (1st Cir.2005). The BIA has determined that appellant’s application for asylum was not timely; we have no jurisdiction to review that decision. We review only appellant’s withholding of removal and CAT claims. To be eligible for withholding of removal, an alien must show that his or her “life or freedom would be threatened in [his or her home country] because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). In order to carry his or her burden of persuasion, the alien must show either past persecution (thereby giving rise to a rebutta-ble presumption of future persecution) or that it is more likely than not that he will suffer persecution on account of a protected ground if he returns to his home country. See 8 C.F.R. § 208.16(b); see also Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.2005). The BIA’s finding that appellant failed to demonstrate past persecution, giving rise to a presumption of likely future persecution upon his return to Haiti, easily survives our review for substantial evidence. Our review of appellant’s testimony before the IJ supports the BIA’s finding. Even if credible, appellant’s testimony does not describe persecution, as we have defined that term. See Sharari, 407 F.3d at 474 (“Persecution does not include ‘all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.’”) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993)). Appellant appears to have suffered some unpleasant treatment, but he has not shown that he has been the target of persecution. He had no specific knowledge of how the fire was started or by whom, nor was there any evidence (other than its perhaps unfortunate timing) that it was related to his political activities. He described a series of threats and" }, { "docid": "22130556", "title": "", "text": "the events that Gabuniya alleged took place in Georgia did not amount to persecution or torture. In addition, the IJ found that, even if past persecution had been established, the change in country conditions rebutted any presumption that Gabuniya would be persecuted or tortured if he returned to Georgia. Gabuniya timely appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”) in January 2004. While Gabuniya’s appeal was pending before the BIA, he won the Diversity Immigrant Visa lottery, which required him to file an application to adjust his status. In July of 2004, seven months after filing his appeal from the ÍJ’s decision, Gabuniya moved for a remand so that he could adjust his status. Two months later, he married Barbakadze. Barbakadze, though not a United States citizen, was the beneficiary of an approved 1-130 application filed by her previous husband during their marriage. In September 2004, Gabuniya submitted an amended 1-485 application for asylum, attaching a copy of Barbakadze’s approved 1-130, but no evidence that she obtained a visa or adjusted her status. On June 10, 2005, the BIA affirmed the IJ’s denial of Gabuniya’s application for asylum, withholding of removal, and protection under the CAT, finding that the IJ correctly ruled that Gabuniya was not credible and failed to meet his burden of proof. The BIA also denied the motion for a remand as being without merit, but provided no further explanation. II. Analysis A. Applicable law The Attorney General may “not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231. In order to be eligible for withholding of removal, Gabuniya must demon strate a clear probability of persecution— in other words, that it is more likely than not that he will be persecuted if he returns to Georgia. See Toure v. Attorney Gen., 443 F.3d 310, 317 (3d Cir.2006). Similarly, to qualify for relief under the CAT, Gabu-niya must demonstrate that" }, { "docid": "22670032", "title": "", "text": "Asylum Claims Before discussing the various challenges petitioners raise to the BIA’s precedential decisions in their cases, we note that petitioners frame those arguments, in the first instance, by reference to their claims for asylum. This makes sense because, to secure asylum, petitioners need demonstrate only that their professed fear of future persecution in China in the form of forced sterilization is “well founded,” see 8 U.S.C. § 1101(a)(42), a lighter burden of proof than showing that such persecution is “more likely than not,” the standard necessary to secure withholding of removal or CAT relief. See INS v. Cardoza-Fonseca, 480 U.S. at 440, 107 S.Ct. 1207; accord Yi Long Yang v. Gonzales, 478 F.3d 133, 141 (2d Cir.2007); see also 8 C.F.R. § 208.16(b)(2) (providing that alien seeking withholding of removal must establish that it is more likely than not that his life or freedom would be threatened in his country of origin on one of specified protected grounds); id. § 208.16(c)(2) (requiring alien seeking CAT relief to show it is more likely than not that he would be tortured on removal). Thus, if the BIA properly concluded that petitioners each failed to demonstrate a well-founded fear of future persecution, it follows that they cannot carry the heavier burden necessary to secure withholding of removal or CAT relief. Because we identify no error in the BIA’s asylum ruling, we need not discuss these other forms of relief from removal. B. The Unchallenged Issue of Statutory Interpretation To secure asylum, an alien must demonstrate that he qualifies as a “refugee” within the meaning of the INA because he has suffered past persecution on account of “race, religion, nationality, membership in a particular social group, or political opinion,” or that he has a well-founded fear of future persecution on such grounds. 8 U.S.C. § 1101(a)(42). Government-ordered forced abortions or sterilizations are statutorily recognized as political persecution. See id. On these petitions for review, no party challenges the BIA’s decision to construe 8 U.S.C. § 1101(a)(42) to recognize the possibility that, on a case-by-case analysis, some Chinese nationals with two or more children" }, { "docid": "22325430", "title": "", "text": "withholding of removal under the INA, an alien must show that there is a “clear probability,” that is, that “ ‘it is more likely than not,’ ” that she would be subject to persecution on the basis of one of these five grounds were she removed from this country. Liti v. Gonzales, 411 F.3d 631, 640-41 (6th Cir.2005) (quoting 8 C.F.R. § 1208.16(b)(2)). By contrast, to be eligible for withholding of removal under the CAT, “the applicant bears the burden of establishing ‘it is more likely than not that he or she would be tortured if removed to the proposed country of removal.’ ” Id. at 641 (quoting 8 C.F.R. § 1208.16(c)(2)). 2. Standard of Review We review the BIA’s decision on a request for withholding of removal under the same standard regardless of whether the request was made pursuant to the INA or the CAT. Castellano-Chacon, 341 F.3d at 552. We will reverse the BIA’s determination against withholding of removal if it is “manifestly contrary to law.” 8 U.S.C. § 1252(b)(4)(C). To reverse the BIA’s determination, we must find that the evidence “not only supports a contrary conclusion, but indeed compels it.” Yu v. Ashcroft, 364 F.3d 700, 702-03 (6th Cir. 2004) (internal quotation marks omitted). We defer to the administrative findings of fact except when “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); accord Yu, 364 F.3d at 702. 3. Withholding of Removal Under the INA a. Past Persecution The regulations governing the withholding of removal under the INA provide, much like those governing asylum, that when “the applicant is determined to have suffered past persecution in the proposed country of removal on account of [a protected ground], it shall be presumed that the applicant’s life or freedom would be threatened in the future in the country of removal on the basis of the original claim.” 8 C.F.R. § 208.16(b)(1)®. We have held that persecution consists of “more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty.”" }, { "docid": "22818352", "title": "", "text": "court for review. II. To establish eligibility for the discretionary grant of asylum under the Immigration and Nationality Act, the applicant has the burden of showing either that she was subjected to past persecution or that she has a “well-founded” fear of future persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 208.13(b)(1). Fear of future persecution “contains a subjective and an objective component.” Chen v. INS, 195 F.3d 198, 201 (4th Cir.1999). The subjective component is satisfied “by presenting candid, credible, and sincere testimony demonstrating a genuine fear of persecution.” Id. (quotations omitted). “The objective element requires the asylum [applicant] to show, with specific, concrete facts, that a reasonable person in like circumstances would fear persecution.” Id. at 202. If the applicant establishes past persecution, a rebuttable presumption of a well-founded fear of persecution is also established. 8 C.F.R. § 208.13(b)(1). To qualify for withholding of removal, the applicant must establish that if she is removed, there is a clear probability that her “life or freedom would be threatened ... because of [her] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). An applicant “who has failed to establish the less stringent well-founded fear standard of proof required for asylum relief is necessarily also unable to establish an entitlement to withholding of removal.” Anim v. Mukasey, 535 F.3d 243, 253 (4th Cir.2008) (quotations and citation omitted). To be eligible for protection under CAT, the applicant must show that it is “more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(1), (2); see Gandziami-Mickhou, 445 F.3d at 354. The likelihood of torture, however, need not be tied to a protected ground under CAT. See Dankam v. Gonzales, 495 F.3d 113, 115-16 (4th Cir.2007). “We review the BIA’s administrative findings of fact under the substantial evidence rule, and we are obliged to treat them as conclusive unless the evidence before the BIA was such that any reasonable adjudicator would have been" }, { "docid": "20649418", "title": "", "text": "We have jurisdiction over Hayek’s claims for withholding of removal and CAT relief. See Sharari v. Gonzales, 407 F.3d 467, 474 (1st Cir.2005). In assessing these claims, we will “uphold the BIA’s determination if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir.2004) (citation and internal quotation marks omitted). “Under the highly deferential substantial evidence standard, we must uphold the BIA’s findings unless any reasonable adjudicator would be compelled to conclude to the contrary.” Gi Kuan Tai v. Gonzales, 423 F.3d 1, 4 (1st Cir.2005) (citation and internal quotation marks omitted). An applicant for withholding of removal must “show either that (i) he has suffered past persecution on account of [race, religion, nationality, membership in a particular social group, or political opinion] (thus creating a rebuttable presumption that he may suffer future persecution), or (ii) it is more likely than not that he will be persecuted on account of a protected ground upon his return to his native land.” Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.2005) (citing 8 C.F.R. § 208.16(b)). This is a more rigorous standard than the standard for asylum. An applicant for CAT relief “must bear the burden to prove, by objective evidence, that it is more likely than not that he will be tortured if he is deported.” Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir.2004) (emphasis omitted) (citing 8 C.F.R. § 208.16(c)(2)). Under the standards for both withholding of removal and CAT relief, “[t]he testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 208.16(b),(c)(2). Hayek argues that some of the IJ’s stated reasons for doubting her story — her quick marriage to her fiancé and her failure to file a timely asylum application — are misplaced. However, Hayek’s testimony was general, meager, and often vague. She failed to testify in detail or corroborate her story. Under the circumstances of this case, and given her admitted contact with sources who could have corroborated her story" }, { "docid": "22340858", "title": "", "text": "to bolster their claims of a well-founded fear of political persecution. Furthermore, at the removal hearing, the Litis did not provide any reasonable explanation for the absence of any corroborating evidence. Without such evidence, we agree with the BIA that in light of the fundamentally changed conditions in Albania, the Litis failed to satisfy their burden of demonstrating a well-founded fear of future persecution if they were to return. Therefore, we conclude that the BIA’s decision denying the Litis’ asylum claim was supported by substantial evidence. B. Withholding of Removal and Relief under CAT In addition to their asylum claim, the Litis also petition for review of the BIA’s denial of their request for withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). Withholding of removal is required if the alien can demonstrate that “his or her life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 1208.16(b). “An applicant seeking withholding of removal faces a more stringent burden than what is required on a claim for asylum.” Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir.2004). In order to qualify for withholding of removal, the Litis “must establish that there is a clear proba bility that [they] will be subject to persecution if forced to return to [Albania].” Id. To establish a clear probability, the applicant must demonstrate that “it is more likely than not” that he or she will be persecuted upon return. 8 C.F.R. § 1208.16(b)(2). Because the Litis have failed to establish their eligibility for asylum, “it therefore follows that [they] cannot satisfy the more stringent standard for withholding of [removal]” as well. Koliada v. INS, 259 F.3d 482, 489 (6th Cir.2001). Similarly, the Litis petition for review of the BIA’s denial of relief under CAT. “Protection under the Convention exists in the form of withholding of removal to the country of torture.” Ali v. Reno, 237 F.3d 591, 596 (6th Cir.2001). To obtain relief under CAT, the applicant bears the burden of establishing" }, { "docid": "22130567", "title": "", "text": "significant abuse at the hands of the Georgian authorities. Gabuniya testified that he endured arbitrary arrest, detention, beatings, threats, coercive attempts to extract a false confession, and the murder of his wife. We cannot agree with the IJ’s glib characterization of these incidents as merely “the denial of the right of free speech and the right to demonstrate.” A reasonable factfinder would be compelled to conclude that these incidents fall within the definitions of persecution and torture and that Gabuniya fnet his burden of demonstrating that it is more likely than not that he will face persecution or torture if he returns to Georgia. See Voci v. Gonzales, 409 F.3d 607, 614 (3d Cir.2005) (holding that “multiple beatings from police, including beatings that caused injury ... all as a result of [the petitioner’s] political beliefs” constituted persecution). We therefore find that substantial evidence does not support the BIA’s holding that (i) Gabuniya was not credible and (ii) did not establish a clear probability of future persecution and torture based on past incidents of persecution and torture. C. Changed country conditions The IJ found that, even if Gabuniya had demonstrated past persecution, conditions in Georgia had changed such that he was no longer more likely than not to be persecuted if he returned there. When an applicant establishes a presumption of future persecution based on evidence of past persecution, the Government may rebut the presumption by demonstrating by a preponderance of the evidence that “[t]here has been a fundamental change in circumstances such that the applicant’s life or freedom would not be threatened ... upon the applicant’s removal.” 8 C.F.R. § 208.16(b)(l)(i)(A), (b)(1)(h). A mere ten days before the IJ’s decision in this case, Shevardnadze resigned in a bloodless change of regime known as the “Rose Revolution.” Based solely on this fact, and without any evidence in the record of changed conditions regarding the practice of arbitrary arrest, torture, or corruption, or any evidence that conditions had changed for those advocating democratic reform, the IJ concluded that Gabu-niya no longer faced any threat of future persecution by the Georgian government due" }, { "docid": "23037804", "title": "", "text": "animus toward Shehu’s family, particularly as Shehu adduced no evidence showing that family members not involved in thwarting the robbery were threatened. See Fatin v. INS, 12 F.3d 1233, 1239 (3d Cir.1993). An applicant who establishes past persecution is “entitled to a presumption that his life or freedom will be threatened if he returns.” Gabuniya v. Att’y Gen., 463 F.3d 316, 321 (3d Cir.2006); see 8 C.F.R. § 208.16(b)(1). The Government may rebut this presumption by demonstrating by a preponderance of the evidence that “[t]here has been a fundamental change in circumstances such that the applicant’s life or freedom would not be threatened ... upon the applicant’s removal.” 8 C.F.R. § 208.16(b)(l)(i)(A) and (b)(1)(h). Substantial evidence supports the IJ’s conclusion that any presumption of a well-founded fear of future persecution arising from Shehu’s 1991 imprisonment is rebutted by the collapse of the Communist regime and the eleven years during which Shehu was free from government persecution. The IJ found that because Shehu had not shown an objectively reasonable basis for his fear of persecution so as to establish grounds for asylum, he had also not established the clear probability of persecution required for withholding of re moval. See, e.g., Gabuniya v. Att’y Gen., 463 F.3d 316, 320-21 (3d Cir.2006). To demonstrate entitlement to relief under the CAT, Shehu must show that he is “more likely than not” to be tortured if he returns to Albania. 8 C.F.R. § 1208.16(c)(2). The torture must be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1). No evidence in the record compels the conclusion that Shehu is “more likely than not” to be tortured with the consent or acquiescence of the Albanian government upon his return. We will deny the petition for review." }, { "docid": "5181029", "title": "", "text": "identify its source, or any consequences he endured beyond the one warning which did not include a threat of harm. The IJ found Ladyha’s testimony generally credible. While she acknowledged possible mistreatment, the IJ concluded that Ladyha had not established a well-founded fear of persecution on any ground or a likelihood that he would be tortured if removed to Belarus, and the BIA agreed. Ladyha has not challenged the denial of his application for CAT relief, 8 C.F.R. § 1208.16(c)(2), or voluntary departure, id. at § 1229c(b)(1)(A). Therefore we review only the decision about his eligibility for asylum and withholding. An asylum applicant must prove that he cannot return to his country of origin “because of persecution or a well-founded fear of persecution on account of ... religion ... or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “Persecution is the infliction or threat of death, torture, or injury to one’s person or freedom, on account of race, religion, nationality, membership in a particular social group, or political opinion.” Davila-Mejia v. Mukasey, 531 F.3d 624, 628 (8th Cir.2008) (quotation omitted). An applicant may qualify for asylum by proof of either past persecution or a well founded fear or future persecution. 8 C.F.R. § 208.13(b). “We review the BIA’s decision as the final agency action, including the IJ’s findings and reasoning to the extent they were expressly adopted by the BIA.” Lovan v. Holder, 574 F.3d 990, 993 (8th Cir.2009)(quotation omitted). We review the record for substantial evidence and affirm unless the evidence was “so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Gomez v. Gonzales, 425 F.3d 543, 545 (8th Cir.2005), citing I.N.S. v. Elias-Zacarias, 502 U.S. 478, 484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Ladyha has not demonstrated that the record evidence compels reversal on the basis of past persecution. While Ladyha testified he was threatened at knifepoint, the “king of the city” comment by his assailants is accurately characterized as “exaggerated, non-specific, or lacking in immediacy.” Corado v. Ashcroft, 384 F.3d 945, 947 (8th Cir.2004). Ladyha was unharmed. See Quomsieh v. Gonzales, 479" }, { "docid": "19802029", "title": "", "text": "denied Nako’s application in an oral decision at the end of the December 17, 2007, hearing. The IJ deemed Nako credible, but found he had not established a well-founded fear of future persecution and was not entitled to asylum or withholding of removal because he had repeatedly returned to Albania after his move to Italy, demonstrating an apparent lack of fear of future persecution. The IJ also concluded that even assuming Nako had suffered past persecution and received the presumption of a well-founded fear of future persecution, 8 C.F.R. § 1208.13(b)(1), this presumption had been rebutted. Nako had not shown a well-founded fear of future persecution “based significantly in part on the fact that there ha[ve] been compelling changes in the government of Albania.” The IJ supported this conclusion by citing details from the State Department’s 2006 Country Report on Human Rights Practices and 2006 Profile of Asylum Claims and Country Conditions for Albania (the most recent reports). These reports indicated that there were no major outbreaks of political violence in Albania since 1998, that peaceful elections had been held in 2005, that the leader of the Democratic Party had become prime minister, that the Democratic Party controlled parliament with 81 of 140 seats, and that the political parties had ceased abuse or coercion of political opponents. The reports provided no evidence of present systemic political persecution in Albania. Because Nako had not met the lesser burden for asylum, his claim for withholding of removal necessarily failed. The IJ also denied CAT protection after finding that Nako had failed to show a likelihood he would be tortured in Albania, and ordered petitioners removed to Albania. On August 27, 2009, the BIA adopted and affirmed the IJ’s denial of asylum on the basis of changed country conditions in Albania. The BIA rejected Nako’s claim on appeal that the IJ failed to give sufficient weight to record evidence of country conditions, finding that the 2006 State Department Country Report and Asylum Profile were “probative evidence” of changed conditions. The BIA affirmed the IJ’s rejection of withholding of removal and also affirmed the" }, { "docid": "1364130", "title": "", "text": "country conditions that they submitted. They further argue that the BIA’s conclusion that the family had not been singled out and that there was no pattern or practice of persecution was not based on the record. The family also challenges the BIA’s denial of their CAT claim, arguing that the BIA’s finding that the family would not be tortured is not supported by substantial evidence. A. Withholding of Removal “When the BIA adopts the IJ’s opinion and discusses some of the bases for the IJ’s decision, we have authority to review both the IJ’s and the BIA’s opinions.” Ouk v. Gonzales, 464 F.3d 108, 110 (1st Cir.2006). We begin with the family’s withholding of removal claim. We review the BIA’s withholding of removal determinations under the deferential substantial evidence standard. Fesseha v. Ashcroft, 338 F.3d 13, 18 (1st Cir.2003); see also Sharari v. Gonzales, 407 F.3d 467, 473 (1st Cir.2005). Under this standard, “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). To qualify for withholding of removal, “the burden of proof is on the applicants] ... to establish that [their] life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 208.16(b); see • also 8 U.S.C. § 1231(b)(3)(A). Applicants can carry this burden by demonstrating past persecution, which gives rise to a rebutta-ble presumption of future persecution, or by showing that it is “more likely than not” that they will face future persecution based on one of the statutory grounds. 8 C.F.R. § 208.16(b)(l)(i), (b)(2); see also Sela v. Mukasey, 520 F.3d 44, 46 (1st Cir.2008). In this case, substantial evidence supports the conclusion that Limani and Silmi failed to establish past persecution or a clear probability of future persecution. First, both Limani and Silmi alleged only “isolated incident[s] without violence or detention,” which “do not constitute persecution.” Sela, 520 F.3d at 46 (quoting Ferdinandus v. Gonzales, 504 F.3d 61, 63 (1st Cir.2007)) (internal quotation marks" }, { "docid": "1053318", "title": "", "text": "328 F.3d at 967. The IJ’s decision must be upheld if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole. Uwase, 349 F.3d at 1041; Georgis, 328 F.3d at 967. In order to make out a claim for withholding of removal, Lhanzom must demonstrate that her life or her freedom would be threatened in her home country on account of race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A); Cuevas v. INS, 43 F.3d 1167, 1171 (7th Cir.1995). Unlike the decision to grant asylum, which is discretionary even if the criteria for asylum are met, the Attorney General must withhold deportation if the alien meets the criteria stated for withholding of removal. Firmansjah v. Gonzales, 424 F.3d 598, 604-05 (7th Cir.2005); 8 U.S.C. § 1232(b)(3)(A). Lhanzom must demonstrate by a clear probability that she will face persecution if she is removed to China. Zheng v. Gonzales, 409 F.3d 804, 809 (7th Cir.2005). A clear probability exists when the applicant demonstrates that it is more likely than not that she will be persecuted if returned to her native country. Zheng, 409 F.3d at 809. If Lhanzom is able to show she suffered past persecution, a presumption arises that the persecution will continue upon her return. Zheng, 409 F.3d at 809. To obtain relief under the CAT, the petitioner must “establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2); Nigussie, 383 F.3d at 534. “The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 208.16(c)(2). Other evidence considered relevant to the applicant’s burden of proof for the possibility of future torture includes, but is not limited to, evidence of past torture inflicted on the applicant, evidence of “gross, flagrant or mass violations of human rights within the country of removal,” and other information regarding conditions in the country of removal. 8 C.F.R. § 208.16(c)(3). See also 8 C.F.R." }, { "docid": "22130558", "title": "", "text": "it is more likely than not that he will be tortured if he is removed to Georgia. 8 C.F.R. § 208.16(c)(2) (2006); Toure, 443 F.3d at 317. Gabuniya argues that he is entitled to withholding of removal and protection under the CAT because of the persecution he faced at the hands of the Georgian government. An applicant who establishes past persecution is entitled to a presumption that his life or freedom will be threatened if he returns. See 8 C.F.R. § 208.16(b)(1). We have defined persecution as “ ‘threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.’ ” Li v. Attorney Gen., 400 F.3d 157, 167 (3d Cir.2005) (citation omitted). Similarly, evidence that the applicant has been tortured in the past is to be considered in an application for protection under the CAT. 8 C.F.R. § 208.16(c)(3)(i). Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. 8 C.F.R. § 208.18(a)(1) (2006). The testimony of the applicant alone, if credible, may be sufficient to sustain the applicant’s burden of proof for demonstrating past persecution and torture. 8 C.F.R. § 208.16(b), (c)(2). B. The adverse credibility finding The IJ found that Gabuniya’s claims of past persecution were not credible. We review adverse credibility determinations under the substantial evidence standard. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). We cannot overturn a credibility finding simply because we would reach a different opinion; rather, we must find that" }, { "docid": "22855191", "title": "", "text": "Albania won an election in Albania earlier this year.” J.A. at 67 (IJ Dec. at 9); accord World Briefing Europe: Albania: Premier Bows to Defeat, N.Y. Times, Sept. 2, 2005, at A4, available at 2005 WLNR 13805006. Thus, on the basis of published reports of Albania’s political development, we have previously stated that the conditions in Albania are “fundamentally changed,” Liti, 411 F.3d at 640, and we cannot fault the IJ for reaching the same conclusion. Given Ndrecaj’s admission that he can return to Albania and his failure to show any real threat of individualized persecution, we must agree with the IJ that the changed country conditions provide an independent basis for the IJ’s finding of a failure to show a well-founded fear of future persecution. E. Withholding of Removal In addition to his asylum claim, Ndrecaj also requested withholding of removal under the INA and the CAT. When we review a denial of withholding of removal under the INA, “[t]he standard of review requires us to uphold the BIA’s determination against withholding the removal of an alien, unless it is ‘manifestly contrary to the law.’ Furthermore, any administrative findings of fact are ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Castellano-Chacon v. INS, 341 F.3d 533, 545 (6th Cir.2003) (quoting Ali v. Reno, 237 F.3d 591, 596 (6th Cir.2001)). The same standard applies to claims for withholding of removal under the CAT. Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th Cir.2006) (“We review the BIA’s decision on a request for withholding of removal under the same standard regardless of whether the request was made pursuant to the INA or the CAT.”); Castellano-Chacon, 341 F.3d at 552. In order to qualify for withholding of removal under the INA, the applicant must “establish that his or her life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 208.16(b). The applicant can establish eligibility for withholding of removal by showing either past persecution, § 208.16(b)(l)(i), or" }, { "docid": "1387048", "title": "", "text": "Withholding of Removal, and CAT Relief The Attorney General has the discretion to grant asylum to any person who satisfies the definition of “refugee.” Osonowo v. Mukasey, 521 F.3d 922, 926 (8th Cir.2008). To qualify for such relief, Alanwoko must establish that he is unwilling to return to Nigeria because of a well-founded fear of future persecution based upon his “race, religion, nationality, membership in a particular social group, or political opinion.” See 8 U.S.C. § 1158(b)(1)(B). “A well-founded fear is one that is both subjectively genuine and objectively reasonable.” Falaja v. Gonzales, 418 F.3d 889, 894 (8th Cir.2005) (internal quotation omitted). To prevail on a motion for withholding of removal, Alan-woko must meet the even higher standard of proving that there is a clear probability that his life or freedom would be threatened on one of the above stated bases if removed to Nigeria. See Osonowo, 521 F.3d at 926. To receive CAT relief, Alan- woko must establish that it is more likely than not that he will be tortured if he returns to Nigeria. See id. (citing 8 C.F.R. § 208.16(c)(2)); see also 8 C.F.R. § 208.18(a)(1) (defining “torture”). “We generally review the BIA’s decision as the final agency action, but where ‘the BIA essentially adopted the IJ’s opinion while adding some of its own reasoning, we review both decisions.’ ” Osonowo, 521 F.3d at 926 (quoting Eta-Ndu v. Gonzales, 411 F.3d 977, 982 (8th Cir.2005)). We review the denial of asylum under the deferential substantial evidence standard and “uphold the agency unless the evidence ‘was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.’ ” Vonhm v. Gonzales, 454 F.3d 825, 828 (8th Cir.2006) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). The IJ found that Alanwoko fears “the general unrest in Nigeria in the places where there are conflicts between the Muslims and the Christians,” but that he did not suffer past persecution or have a well-founded fear of future persecution because he did not show that the government is unwilling or unable" }, { "docid": "22604777", "title": "", "text": "(2d Cir.2004). While “persecution” is not defined in the INA, this Court has explained that persecution includes more than threats to life and freedom, and therefore encompasses a variety of forms of adverse treatment, including non-life-threatening violence and physical abuse, or nonphysical forms of harm such as the deliberate imposition of a substantial economic disadvantage. In short, persecution is the infliction of suffering or harm upon those who differ on the basis of a protected statutory ground---- Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.2006) (internal citations, alterations, and quotation marks omitted). A showing of past persecution on account of a protected ground triggers a rebuttable presumption that the applicant has a well-founded fear of future persecution on that ground. See Uwais v. U.S. Att’y Gen., 478 F.3d 513, 517 (2d Cir.2007); Secaida-Rosales v. I.N.S., 331 F.3d 297, 306 (2d Cir.2003). In contrast to asylum, withholding of removal (formerly “withholding of deportation,” see supra note 1, at 2) is nondiscre-tionary, but requires the applicant to satisfy the more stringent showing that “it is more likely than not” that the applicant’s “ ‘life or freedom would be threatened’ ” on account of one of the protected grounds if the applicant were returned to the applicant’s native country. Ramsameachire, 357 F.3d at 178 (quoting 8 U.S.C. § 1231(b)(3)(A)); see Edimo-Doualla, 464 F.3d at 281; Yan Fang Zhang v. Gonzales, 452 F.3d 167, 172 (2d Cir.2006). To obtain withholding of removal under the CAT, an applicant must show that it is more likely than not that the applicant would be tortured if removed. 8 C.F.R. § 208.16(c); see Edimo-Doualla, 464 F.3d at 281. Where, as here, the BIA affirms the decision of the IJ without issuing an opinion, this Court reviews the decision of the IJ directly, as the final agency determination. See Twum v. I.N.S., 411 F.3d 54, 58 (2d Cir.2005); Secaida-Rosales, 331 F.3d at 305; see also 8 C.F.R. § 1003.1(e)(4). Legal questions, including mixed questions of law and fact and the application of law to fact, are reviewed de novo. See Poradisova v. Gonzales, 420 F.3d" } ]

[ { "docid": "486193", "title": "", "text": "heavily on the third factor, the avoidance of piecemeal litigation. They contend that the tort claims alleged in their state court suit are not arbitrable under the contract and therefore will have to be litigated in a separate forum. Further, they assert that some of the parties will not .participate in the arbitration, namely Sandra Mason and the individual co-defendants, none of whom were parties to the arbitration agreement, again resulting in some claims being litigated in another forum. The terms of the arbitration agreement suggest that, practically speaking, piecemeal litigation may well not result. The arbitration agreement mandates arbitration of claims for breach of the Dealer Agreement as well as for claims “arising out of or relating to” the Dealer Agreement. Because the tort claims all arise out of the business relationship between the opposing parties, it appears that they are arbitrable under the terms of the agreement. The arbitration agreement also provides that Barney Mason must arbitrate not only claims against Snap-on, but also claims against any “employee, officer or director” of Snap-on. Thus Barney Mason’s claims against the Snap-on employees may be subject to arbitration, even though those defendants are not parties to the agreement. Further, according to Snap-on, the individual co-defendants may be willing to participate in the arbitration proceeding. However, even if some piecemeal litigation does result, that sometimes is the inevitable result of a congressional policy strongly favoring arbitration. The Supreme Court in Moses H. Cone noted that although arbitration could result in the hospital being forced to resolve its dispute against the architect in a different forum than its dispute against the contractor, “That misfortune ... is not the result of any choice between the federal and state courts; it occurs because the relevant fed eral law requires piecemeal resolution when necessary to give effect to an arbitration agreement. Under the Arbitration Act, an arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement.” 460 U.S. at 20, 103 S.Ct. at 939. With regard to the fourth factor, concerning" } ]

[ { "docid": "1294052", "title": "", "text": "but that it would be particularly appropriate in view of Bank One’s blatant maneuvering to avoid a “proper state court jurisdiction”. The court is unpersuaded. First, while the possibility of piecemeal litigation is evident, “the ‘piecemeal litigation’ factor is not applicable in the FAA context, where the overriding federal policy is ‘to give effect to ... arbitration agreementfs]’.” Safety Nat’l Cas. Corp. v. Bristol-Myers Squibb Co., 214 F.3d 562, 565-66 (5th Cir.2000) (quoting Moses H. Cone, 460 U.S. at 20, 103 S.Ct. 927, 74 L.Ed.2d 765); see also Snap-On Tools Corp. v. Mason, 18 F.3d 1261, 1265 (5th Cir.1994) (piecemeal litigation is sometimes “the inevitable result of congressional policy strongly favoring arbitration”); Black Sea, 204 F.3d at 650 (“A ‘clear federal policy ... [of] avoidance of piecemeal adjudication of water rights in a river system’ was ‘the most important factor’ in the Supreme Court’s decision to abstain in Colorado River.... Conversely, a clear Congressional policy ‘to move parties to an arbitrable dispute out of court and into arbitration as quickly and as easily as possible’ — a policy that was most readily given effect in federal court — decisively weighed against abstention in Moses H. Cone Mem. Hosp.”). Indeed, as the Court recognized in Moses H. Cone, “the relevant federal law requires piecemeal resolution when necessary to give effect to an arbitration agreement.” Moses H. Cone, 460 U.S. at 20, 103 S.Ct. at 939. Further, while defendant argues that the case involves numerous state law issues, the Fifth Circuit has said that “only rarely will ‘the presence of [a] state law issue[ ] weigh[ ] in favor of abstention, and even where the state court can adequately protect all parties, this fact ‘can only be a neutral factor or one that weighs against ... abstention’.” Safety Nat’l Cas. Corp., 214 F.3d at 566 (citing Evanston, 844 F.2d at 1193); see also Black Sea, 204 F.3d at 650-51 n. 7 (noting that where there is no res at issue, the danger of inconsistent rulings is less relevant). Moreover, while state law may inform the court’s decision regarding arbitration, the ultimate question" }, { "docid": "16798212", "title": "", "text": "is covered by a written arbitration agreement. This issue is different from that presented when resolving the dispute on the merits. When deciding arbitrability, the court only determines whether, as a matter of contract between the parties, the underlying dispute should be resolved in court or by arbitration. The district court erroneously failed to resolve this question as a matter of federal law, separate from the issue on the merits. See Moses H. Cone, 460 U.S. at 21, 103 S.Ct. at 939 (arbitrability issue is easily severable from the merits of the underlying dispute). Although not articulated specifically, the district court’s reluctance to proceed with the second federal case appears also to have been attributable to a notion of abstention in favor of permitting the state, where the dispute on the merits was pending, to resolve the issue of arbitrability. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). We have already held, however, that absent exceptional circumstances, a federal district court has “no right to stay the federal proceedings” brought under the FAA even though a similar action between the parties was pending in the state court. In re Mercury Constr. Corp., 656 F.2d 933, 946 (4th Cir.) (en banc), reh. den., 664 F.2d 936 (1981), aff'd sub nom. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). In its affirming decision, the Supreme Court pointed out the first principle of abstention: “Abstention from the exercise of federal jurisdiction is the exception, not the rule. ‘The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest.’ ” Moses Cone Hosp., 460 U.S. at" }, { "docid": "19384126", "title": "", "text": "an individual surely cannot contract away the arbitral resolution of another’s statutory claims. Here, Adams contracted with Frank’s to resolve her own Title VII claims by arbitration. On the other hand, the EEOC, even after making efforts at conciliation and settlement, never agreed to arbitrate with Frank’s. Instead, the EEOC exercised its right to sue Frank’s in federal court. As for Adams, she has not raised a claim against Frank’s at all: she neither initiated an arbitration nor a federal lawsuit. While the district court ordered Adams to arbitration pursuant to § 4 of the FAA, Adams has never really failed, neglected or refused to arbitrate and has thus not breached her agreement with Frank’s. In an effort to circumvent the obvious fact that the EEOC never agreed to the arbitration of its dispute with Frank’s, the district court relied on Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 20, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), to bind the EEOC under Adams’ agreement to arbitrate. Indeed, the Supreme Court did state in Moses H. Cone that under the FAA, “an arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement.” Id. However, a careful reading of Moses H. Cone reveals that the district court’s reliance on the quoted language was misplaced. In the case cited, Moses H. Cone Memorial Hospital had substantive related disputes with Mercury Construction Company, with which it had agreed contractually to arbitrate disputes, and an architect with whom it had no arbitration agreement. See Moses H. Cone, 460 U.S. at 20, 103 S.Ct. 927. The hospital sought a declaratory judgment against Mercury establishing that Mercury had no right to arbitration. See id. at 7, 103 S.Ct. 927. In resolving the case, the Court recognized merely that the hospital’s related dispute with its architect could not prevent enforcement of its valid arbitration agreement with its construction company. See id. at 20, 103 S.Ct. 927. More significantly, however, the Court recognized that if “the dispute between Mercury and the" }, { "docid": "23405625", "title": "", "text": "this doctrine, as an exception to the broad pro-arbitration policy embodied in the Arbitration Act, was limited to areas, such as federal securities and antitrust laws, for which Congress has determined that such an exception is appropriate. Tai Ping Insurance Co., Ltd. v. M/V WARSCHAU, 731 F.2d 1141,1146 (5th Cir.1984). Where, as here, no inherently nonarbitrable issues are involved, and there is no contention that the entire dispute between Tenneco and Davy is not arbitrable, application of the intertwining doctrine would be inappropriate. Moreover, this Circuit has recently held that a district court lacks discretion to decide whether to stay judicial proceedings due to the presence of intertwining nonarbitrable claims, because the United States Supreme Court recently “expressly rejected the intertwining doctrine adopted by the Fifth, Ninth and Eleventh Circuits.” Austin Municipal Securities v. National Association of Securities Dealers, Inc., 757 F.2d 676, 697 (5th Cir.1985) (citing Dean Witter Reynolds, Inc. v. Byrd, — U.S. -, 105 S.Ct. 1238, 1241, 84 L.Ed.2d 158 (1985) (Arbitration Act requires district courts to compel arbitration of pendent arbitrable claims when one of the parties files a motion to compel, even where result would be possibly inefficient maintenance of separate proceedings in different forums)). Furthermore, appellee’s argument that it would be harmed if obliged to arbitrate with Davy and pursue claims against other defendants in court is unavailing. For the United States Supreme Court has stated that the fact that a party may be forced to resolve related disputes in those two different forums is a misfortune which “occurs because the relevant federal law requires piecemeal resolution when necessary to give effect to an arbitration agreement. Under the Arbitration Act, an arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 939, 74 L.Ed.2d 765 (1983) (emphasis in original). This Circuit has followed Moses Cone in rejecting the argument of economy of effort as the basis for requiring all facets of a dispute to proceed" }, { "docid": "15414823", "title": "", "text": "1987). Swenson’s claims arising out of opening of Swenson’s mail are arbitrable Swenson appeals from the district court’s stay of Counts VI and VII of her complaint pursuant to the FAA. These counts are based upon alleged acts by the defendants which took place after Swenson had terminated her employment. Swenson argues that the parties’ employment agree ment had ended and that an arbitrator could decide only issues which arose during the time the employment agreement was in effect. The duty to arbitrate is contractual. Only those issues which parties have agreed to arbitrate may be submitted to arbitration. Morgan v. Smith Barney, Harris Upham & Co., 729 F.2d 1163, 1165 (8th Cir.1984) (Arbitration is a matter of contract interpretation). This court must first look to the language of the agreement to determine whether the parties intended this dispute to be arbitrated. Id. If the contract language is ambiguous or unclear, federal policy requires that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Id. (citing Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941-42, 74 L.Ed.2d 765 (1983)). The employment agreement provides for arbitration of “all controversies, claims, disputes and matters in question arising out of, or relating to, this Agreement or the breach thereof, or the relations between the parties.” The district court found that given the policy favoring arbitration and the breadth of the arbitration agreement, these claims arose out of Swen-son’s employment as a manager, and were within the parameters of the arbitration clause. Swenson v. CDI Corp., 670 F.Supp. 1438, 1440 (D.Minn.1987). We find no error in this interpretation. We affrm the district court’s decision as to the arbi-trability of Counts VI and VII. Accordingly, we reverse in part and affirm in part the judgment of the district court. . Minn.Stat. §§ 363.01-363.14 (1986 & Supp. 1987). . Swenson signed an agreement with her employer containing a provision requiring arbitration of controversies between the parties pursuant to the Commercial Arbitration Rules of the American Arbitration Association. . The Honorable Donald D." }, { "docid": "1294053", "title": "", "text": "— a policy that was most readily given effect in federal court — decisively weighed against abstention in Moses H. Cone Mem. Hosp.”). Indeed, as the Court recognized in Moses H. Cone, “the relevant federal law requires piecemeal resolution when necessary to give effect to an arbitration agreement.” Moses H. Cone, 460 U.S. at 20, 103 S.Ct. at 939. Further, while defendant argues that the case involves numerous state law issues, the Fifth Circuit has said that “only rarely will ‘the presence of [a] state law issue[ ] weigh[ ] in favor of abstention, and even where the state court can adequately protect all parties, this fact ‘can only be a neutral factor or one that weighs against ... abstention’.” Safety Nat’l Cas. Corp., 214 F.3d at 566 (citing Evanston, 844 F.2d at 1193); see also Black Sea, 204 F.3d at 650-51 n. 7 (noting that where there is no res at issue, the danger of inconsistent rulings is less relevant). Moreover, while state law may inform the court’s decision regarding arbitration, the ultimate question whether arbitration is to be compelled is a decisively federal issue. See Snap-On Tools, 18 F.3d at 1266 (federal law governs the issue of the arbitrability of the dispute between the opposing parties). Finally, the Supreme Court has left no doubt as to its view of the importance of the federal interest in the enforcement of arbitration agreements. In Quackenbush v. Allstate Insurance Company, 517 U.S. 706, 728, 116 S.Ct. 1712, 1727, 135 L.Ed.2d 1 (1996), for example, the Court concluded that the federal interests were pronounced, as the plaintiffs motion to compel arbitration under the Federal Arbitration Act (FAA) “implicate[d] a substantial federal concern for the enforcement of arbitration agreements.” Id. at 728-29, 116 5.Ct. 1712 (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631, 105 S.Ct. 3346, 3356, 87 L.Ed.2d 444 (1985) (FAA reflects “emphatic federal policy in favor of arbitral dispute resolution”), and Moses H. Cone, 460 U.S. at 25-26, 103 S.Ct. at 942 (in deciding whether to defer to state court adjudication under the Colorado River doctrine, “the" }, { "docid": "3514779", "title": "", "text": "the subject matter of the claim that Yampol seeks to arbitrate is different from those claims that he seeks to litigate. Judge Cedarbaum then carefully reinforced this decision by barring Yampol from recovering in his breach of contract action on any claim that is the subject of his arbitration claim. Graphic Scanning Corp. v. Yampol, 688 F.Supp. at 860 n. 1. In so doing, the court conclusively separated the two disputes: with respect to those claims that it permitted Yampol to arbitrate, nothing further is left for the court to decide. We agree with the district court that the claims are distinguishable, and consequently, on the facts presented, the court’s decision permitting arbitration is an appealable final order. See Manning, 833 F.2d at 1102. Addressing the merits of the application to stay arbitration, the district court first determined that, notwithstanding a choice of New York law’ provision contained in the disputed 1970 employment agreement between Graphic and Yampol, federal law applies to the question of arbi-trability since the contract in question affects interstate commerce. It then concluded that under federal law, Yampol had not waived his right to pursue arbitration since Graphic had not demonstrated any prejudice arising from the litigation that had already ensued in the Delaware action and in Yampol’s breach of contract action in New York. Graphic disputes both of these conclusions, but we find no merit in its arguments. The employment contract plainly “evidencies] a transaction involving interstate commerce,” see 9 U.S.C. § 2 (1982), since it contains a restrictive covenant that limits Yampol’s business activities in New York, New Jersey and Connecticut, and since Graphic is a Delaware corporation headquartered in New Jersey, some of whose activities are regulated by the Federal Communications Commission. The question of arbitrability is therefore governed by federal law. See Southland Corp. v. Keating, 465 U.S. 1, 12, 104 S.Ct. 852, 859, 79 L.Ed.2d 1 (1984). Because of the strong federal policy in favor of arbitration, see Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983), a party" }, { "docid": "535397", "title": "", "text": "Act, an arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. at 20, 103 S.Ct. at 939. (emphasis in original, footnotes omitted). To the extent plaintiff asserts the claims against Shearson are “cognizable at common law” and “wholly compatible with modern 10b-5 aiding and abetting case law”, these claims are arbi-trable under the law as established in McMahon and Bird, supra. This court is persuaded that plaintiffs have not met their burden of showing Congress intended that the judicial forum provisions of ERISA are not subject to waiver. Shearson has moved the court to impose sanctions against the plaintiffs pursuant to Rule 11, Fed.R.Civ.P. The court is convinced, however, that the issues presented here are not so settled as to preclude the plaintiffs from raising them here without risking Rule 11 sanctions. The request for costs and attorney fees will be denied. In accord with this opinion, a separate order staying the proceedings as to the plaintiffs’ claims against Shearson and compelling arbitration will be entered. . The agreement to arbitrate is found in Section 14 of “Client Agreement[s]\" entered between the parties. That section provides in pertinent part as follows: Unless unenforceable due to federal or state law, any controversy arising out of or relating to my accounts, to transactions with you, your officers, directors, agents and/or employees for me or to this agreement or the breach thereof, shall be settled by arbitration in accordance with the rules then in effect of the National Association of Securities Dealers, Inc. or the Boards of Directors of the New York Stock Exchange, Inc. and/or the American Stock Exchange, Inc. as I may elect. If I do not make such election by registered mail addressed to you at your main office within 5 days after demand by you that I make such election, then you may make such election. Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction thereof." }, { "docid": "486192", "title": "", "text": "no bearing on the facts of the instant case. The second factor, inconvenience of the federal forum, while a relevant consideration, does not support abstention here. The Masons argue that they will suffer increased costs if the federal court asserts jurisdiction over this case because the state court is closer to their home. They provide no other evidence of inconvenience; both the federal suit and any arbitration will likely occur in Texas, where the Masons reside. More specifically, at least some increased cost appears to have arisen from the Masons’ resistance to arbitration and their litigating in two court systems, in a manner hardly in accord with the Supreme Court’s approach that, “[contracts to arbitrate are not to be avoided by allowing one party to ignore the contract and resort to the courts. Such a course could lead to prolonged litigation, one of the very risks the parties, by contracting for arbitration, sought to eliminate.” Southland Corp. v. Keating, 465 U.S. 1, 7, 104 S.Ct. 852, 856, 79 L.Ed.2d 1 (1984). The Masons rely most heavily on the third factor, the avoidance of piecemeal litigation. They contend that the tort claims alleged in their state court suit are not arbitrable under the contract and therefore will have to be litigated in a separate forum. Further, they assert that some of the parties will not .participate in the arbitration, namely Sandra Mason and the individual co-defendants, none of whom were parties to the arbitration agreement, again resulting in some claims being litigated in another forum. The terms of the arbitration agreement suggest that, practically speaking, piecemeal litigation may well not result. The arbitration agreement mandates arbitration of claims for breach of the Dealer Agreement as well as for claims “arising out of or relating to” the Dealer Agreement. Because the tort claims all arise out of the business relationship between the opposing parties, it appears that they are arbitrable under the terms of the agreement. The arbitration agreement also provides that Barney Mason must arbitrate not only claims against Snap-on, but also claims against any “employee, officer or director” of Snap-on." }, { "docid": "486195", "title": "", "text": "which forum first acquired jurisdiction over the action, the Masons assert that because the state court suit was filed first, that court should retain jurisdiction. The district court also relied on the priority in filing in its reasoning. However, the Supreme Court in Moses H. Cone characterized as “mechanical” a similar argument in that case and noted that in the arbitration context, such an argument “disregards the obvious reason for the ... priority in filing. An indispensable element of [the contractor’s] cause of action under § 4 for an arbitration order is the Hospital’s refusal to arbitrate- That refusal did not occur until less than a day before the Hospital filed its state suit.” Id. at 21, 103 S.Ct. at 939. See also Municipal Energy Agency v. Big Rivers Elec. Corp., 804 F.2d 338, 344 (5th Cir.1986). In this ease, Snap-on had no notice that the Masons would repudiate their apparent duty to arbitrate until the state court suit was filed, and therefore, there is no reason why Snap-on should be expected to have filed the within suit before that date. That the state of Texas may have some interest in maintaining jurisdiction over this litigation has no bearing in a case such as this one, where the federal policy favoring arbitration prevails “notwithstanding any state substan-five or procedural policies to the contrary.” Moses H. Cone, 460 U.S. at 24, 103 S.Ct. at 941. Moreover, we note that when the district court chose to abstain, the state court had not substantially proceeded towards disposition of the case. In Moses H. Cone, Justice Brennan commented that “the federal suit was running well ahead of the state suit at the very time that the District Court decided to refuse to adjudicate the ease.” 460 U.S. at 22, 103 S.Ct. at 940. As to the fifth Moses H. Cone factor, whether federal law controls the case, the Masons contend that because state law governs the underlying dispute, their claims against Snap-on should be heard in state court. However, in this federal case — concerning only whether the case should be submitted to arbitration" }, { "docid": "23481529", "title": "", "text": "which Kadry and Erickson may rely. In accordance with the Federal Arbitration Act we also find that all of the employees have timely and properly requested arbitration. The remaining issue is whether the arbitration agreement reaches the subject matter of the dispute here. The various arbitration agreements between the parties employ substantially the same terminology. They state that “[a]ny controversy ... arising out of the employment or termination of employment ... shall be settled by arbitration.” NYSE, Rule 347 (emphasis added). The district court found that the solicitation and record duplication took place after the employment relationship between the parties had been terminated. Employing essentially a temporal analysis, the court concluded that the violations, therefore, could not have “aris[en] out of the employment or termination of employment.” On appeal, Merrill Lynch reasserts the contention that only those disputes which occurred during the employment relationship are ar-bitrable. On the other hand, the employees contend that, although the dispute occurred after their termination, it is still within the scope of the arbitration agreement. Upon analysis of the applicability of the Federal Arbitration Act and the Rules and Constitution of the NYSE, along with a plain reading of the arbitration agreement, we find that the dispute is arbitrable. Under the Federal Arbitration Act, 9 U.S.C. §§ 1-4 (1982), where the parties have agreed to seek dispute resolution by arbitration, the courts are asked to stay their hand. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., - U.S. -, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). The scope of the arbitration agreement will be interpreted liberally and “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone, 103 S.Ct. at 941 & n. 27; Johnson Controls, 713 F.2d at 373. “[T]he court’s function in an action to compel arbitration may not extend beyond ascertaining whether the party seeking arbitration has made a claim which on its face is governed by the contract.” National R.R. Passenger Corp., 501 F.2d at 427 (emphasis original). The presumption of arbi-trability, however, is tempered by the caveat that parties cannot" }, { "docid": "18560266", "title": "", "text": "breach thereof, shall be settled by arbitration in accordance with the rule, then in effect, of the National Association of Securities Dealers, Inc. or the Boards of Directors of the New York Stock Exchange, Inc. and/or the American Stock Exchange, Inc. as I may elect, and shall be governed by the laws of the State of New York. In determining the scope of this clause, “any doubts concerning the scope of arbi-trable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). The scope of the arbitration clause implicates the intent of the parties, but doubts regarding that intent must also be resolved in favor of arbi-trability. McDonnell Douglas Fin. Corp. v. Pennsylvania Power & Light Co., 858 F.2d 825, 831 (2d Cir.1988). Again, when the contract contains a “broad” arbitration clause, as the one at issue here, that purports “to refer all disputes arising out of a contract to arbitration,” the strong presumption in favor of arbitrability applies with even greater force. Id. at 832, (citing AT & T Technologies, 475 U.S. at 650, 106 S.Ct. at 1419). Here the trustee’s allegation that Shearson churned HMK accounts clearly arises out of or relates to the HMK account. The arbitration clause does not limit claims to tort or contract. Rather, given that the arbitration clause in each of the Customer Agreements states that all controversies “arising out of or relating to” the accounts are arbitrable, the churning allegation does “touch matters” covered by these Agreements. Genesco, 815 F.2d at 846; citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S. 614, 624 n. 13, 105 S.Ct. 3346, 3352 n. 13, 87 L.Ed.2d 444 (1985); Hays & Co., 885 F.2d at 1153-54 (trustee in bankruptcy for corporation who brought churning claim was bound to arbitration by customer agreement with arbitration clause employing language indistinguishable from that in" }, { "docid": "16798211", "title": "", "text": "of the FAA. See Moses H. Cone, 460 U.S. at 25 n. 32, 103 S.Ct. at 942 n. 32. In this case the district court had jurisdiction by reason of diversity of citizenship, but it was apparently distracted by the facts that (1) an arbitration under White-side’s employment agreement had already been ordered once and completed, and (2) the dispute for which arbitration is sought a second time is the subject of a state court action. In ruling on the motion to compel arbitration in the second federal action, the court stated that because of the first arbitration, “this thing is over as far as this case is concerned.” And, also believing that the arbitration issue could be resolved by the state court, the district court stated that it was “not the one” to make the determination of arbitrability and that it lacked “authority” or jurisdiction to proceed in the federal court. It failed to recognize that the FAA provides a federal cause of action which calls upon the court to decide whether the dispute is covered by a written arbitration agreement. This issue is different from that presented when resolving the dispute on the merits. When deciding arbitrability, the court only determines whether, as a matter of contract between the parties, the underlying dispute should be resolved in court or by arbitration. The district court erroneously failed to resolve this question as a matter of federal law, separate from the issue on the merits. See Moses H. Cone, 460 U.S. at 21, 103 S.Ct. at 939 (arbitrability issue is easily severable from the merits of the underlying dispute). Although not articulated specifically, the district court’s reluctance to proceed with the second federal case appears also to have been attributable to a notion of abstention in favor of permitting the state, where the dispute on the merits was pending, to resolve the issue of arbitrability. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). We have already held, however, that absent exceptional circumstances, a federal district court has “no right" }, { "docid": "16481644", "title": "", "text": "later, the Supreme Court further refined the Colorado River doctrine in Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), a ease involving concurrent state and federal proceedings arising out of a building construction dispute in which a hospital sued a contractor in state court and the contractor sought enforcement of a contractual arbitration clause against the hospital in federal district court. There, the Court reiterated the narrowness of the Colorado River exception and held that abstention was improper on the facts before it. The Cone Court emphasized that the most important — indeed “paramount” — factor justifying abstention in Colorado River was the McCarran Amendment and its policy against piecemeal litigation. 460 U.S. at 20, 103 S.Ct. at 939. In contrast, the Cone case involved the Federal Arbitration Act, which the Court noted expressly requires piecemeal adjudication of certain disputes when necessary to enforce an agreement to arbitrate. Id, The Court then set forth another factor relevant to the abstention calculus under Colorado River: whether state or federal law provided the rule of decision. With respect to that issue, the court noted that the Arbitration Act, unlike the McCarran Amendment, did not express any strong preference for state proceedings that militated in favor of abstention. It then stated emphatically that our task in cases such as this is not to find some substantial reason for the exercise of federal jurisdiction by the district court; rather, the task is to ascertain whether there exist “exceptional” circumstances, the “clearest of justifications,” that can suffice under Colorado River to justify the surrender of that jurisdiction. Although in some rare circumstances the presence of state-law issues may weigh in favor of that surrender, the presence of federal law issues must always be a major consideration weighing against surrender. Id. at 25-26, 103 S.Ct. at 942. We too have had occasion to apply and refine the contours of Colorado River abstention. In Western Auto Supply Co. v. Anderson, 610 F.2d 1126 (3d Cir.1979), two businesses filed suit against each other in state court. One" }, { "docid": "3941430", "title": "", "text": "against First Franklin and one of its employees, alleging several fraud-related claims. Shortly thereafter, First Franklin filed concurrent state and federal court petitions seeking to compel McCol-lum to arbitrate his claims. The district court relied on Colorado River abstention to dismiss the federal court petition, reasoning that concerns of comity and federalism warranted deferral to the previous state court action brought by McCollum. See First Franklin, 144 F.3d at 1363. We vacated and remanded, holding that several of the Moses H. Cone factors weighed in favor of exercising federal jurisdiction. First, we noted that the “piecemeal litigation” factor did not weigh against exercising jurisdiction because no piecemeal litigation would ensue with regard to the arbi-trability of the dispute, the only question before the federal court. In addition, we pointed out that any piecemeal litigation that might result from a decision on arbitrability would be the result of the parties’ voluntary actions and the strong federal policy favoring arbitration. See id. at 1364. Second, we noted in First Franklin that priority of jurisdiction and the timing and progress of the concurrent suits weighed against abstention. As discussed in Moses H. Cone, this factor requires the court to consider not only the chronological order in which the parties initiated the concurrent proceedings, but the progress of the proceedings and whether the party availing itself of the federal forum should have acted earlier. See Moses H. Cone, 460 U.S. at 21-22, 103 S.Ct. at 939-40. First Franklin had filed its suit at nearly the earliest opportunity, shortly after McCollum indicated his refusal to arbitrate by filing his state court lawsuit. Furthermore, the state court had not ruled on First Franklin’s motion to compel arbitration at the time the district court decided to abstain from exercising jurisdiction. As a result, there had been no progress in the state court to weigh in favor of federal court deferral. See id. at 1364-65. Therefore, we concluded that the relative timing and progress of the concurrent proceedings in First Franklin did not weigh in favor of abstention. Third, we noted in First Franklin that the law of" }, { "docid": "16752440", "title": "", "text": "Jordan International Co., 552 F.2d 1228, 1231-32 (7th Cir.1977), cited with approval by the Supreme Court in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 939 n. 23, 74 L.Ed.2d 765 (1983) (Cone Memorial Hospital), held that a district court may not refuse to refer to arbitration a dispute between arbitrating parties related to a dispute between non-arbitratjng parties on the ground of efficiency. In Cone Memorial Hospital, the Supreme Court recognized that in such circumstances a party may be forced to resolve related disputes separately, one in arbitration and the other in court, but that such a “misfortune” occurs because “the relevant federal law requires piecemeal resolution when necessary to give effect to an arbitration agreement.” 103 S.Ct. 939 n. 23 (emphasis in original). The Court reaffirmed that the Arbitration Act is “a congressional declaration of a liberal federal policy favoring arbitration agreements,” id. at 941, and cited Dickinson as supporting the proposition that “allegations of waiver, delay, or like defense to arbitrability” should be resolved in favor of arbitration. Id. at 941-42 & n. 31. We believe that these pronouncements fully support the conclusion that joinder with a factually intertwined non-arbitrable claim cannot succeed as a defense to arbitrability of an arbitrable claim. Appellees argue that if their fraud claims are referred to arbitration, they will not be able to recover punitive damages. This, however, is what the parties contracted for. Accordingly, we remand this case to the district court with instructions to refer counts III and IV of appellees’ complaint to arbitration. In deciding whether arbitration of these counts should go forward immediately or await the outcome of the securities law claims, the district court should consider what ordering of arbitration and litigation would result in the most efficient resolution of the dispute between the parties. . The arbitration clause in the standard investor-broker agreement stated in part: \"It is agreed that any controversy between us arising out of your business or this agreement shall be submitted to arbitration.\" The arbitration clause in the standard option trading agreement stated in" }, { "docid": "486196", "title": "", "text": "the within suit before that date. That the state of Texas may have some interest in maintaining jurisdiction over this litigation has no bearing in a case such as this one, where the federal policy favoring arbitration prevails “notwithstanding any state substan-five or procedural policies to the contrary.” Moses H. Cone, 460 U.S. at 24, 103 S.Ct. at 941. Moreover, we note that when the district court chose to abstain, the state court had not substantially proceeded towards disposition of the case. In Moses H. Cone, Justice Brennan commented that “the federal suit was running well ahead of the state suit at the very time that the District Court decided to refuse to adjudicate the ease.” 460 U.S. at 22, 103 S.Ct. at 940. As to the fifth Moses H. Cone factor, whether federal law controls the case, the Masons contend that because state law governs the underlying dispute, their claims against Snap-on should be heard in state court. However, in this federal case — concerning only whether the case should be submitted to arbitration under § 4 of the FAA — federal law provides the rule of decision on the merits. Id. at 24, 103 S.Ct. at 941. The basic issue presented in this suit, as in Moses H. Cone, is “the arbitrability of the dispute” between the opposing parties, and federal law governs that issue whether it is raised in federal or state court. Id. at 24, 103 S.Ct. at 941. Despite the obvious applicability of Moses H. Cone to the facts of the instant case, the Masons present several additional arguments with which they attempt to distinguish this case from Moses H. Cone. In that context, they contend that the individual state defendants are indispensable parties to the within case under Fed.R.Civ.P. 19 and that the presence of all of them destroys diversity jurisdiction. Without diversity jurisdiction, the federal courts would have no subject matter jurisdiction over this case. Accord ing to the Masons, the co-defendants are indispensable because “any resolution by arbitration does not adjudicate all issues of law and fact between the Masons and all" }, { "docid": "18560265", "title": "", "text": "of limitations question, then it also erred. We have said that a court asked to stay arbitration has four tasks: [F]irst, it must determine whether the parties agreed to arbitrate; second, it must determine the scope of that agreement; third, if federal statutory claims are asserted, it must consider whether Congress intended those claims to be nonarbitrable; and fourth, if the court concludes that some, but not all, of the claims in the case are arbitrable, it must then determine whether to stay the balance of the proceedings pending arbitration. Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 844 (2d Cir.1987) (citations omitted). Only the scope of the agreement is at issue here, and we review the district court’s determination of the scope of an arbitration agreement de novo. Id. at 846. The arbitration clauses in the three Customer Agreements all read as follows Unless unenforceable due to federal or state law, any controversy arising out of or relating to my account, to transactions with you for me or this authorization or the breach thereof, shall be settled by arbitration in accordance with the rule, then in effect, of the National Association of Securities Dealers, Inc. or the Boards of Directors of the New York Stock Exchange, Inc. and/or the American Stock Exchange, Inc. as I may elect, and shall be governed by the laws of the State of New York. In determining the scope of this clause, “any doubts concerning the scope of arbi-trable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). The scope of the arbitration clause implicates the intent of the parties, but doubts regarding that intent must also be resolved in favor of arbi-trability. McDonnell Douglas Fin. Corp. v. Pennsylvania Power & Light Co., 858 F.2d 825, 831 (2d Cir.1988). Again, when the contract contains a “broad” arbitration" }, { "docid": "486197", "title": "", "text": "under § 4 of the FAA — federal law provides the rule of decision on the merits. Id. at 24, 103 S.Ct. at 941. The basic issue presented in this suit, as in Moses H. Cone, is “the arbitrability of the dispute” between the opposing parties, and federal law governs that issue whether it is raised in federal or state court. Id. at 24, 103 S.Ct. at 941. Despite the obvious applicability of Moses H. Cone to the facts of the instant case, the Masons present several additional arguments with which they attempt to distinguish this case from Moses H. Cone. In that context, they contend that the individual state defendants are indispensable parties to the within case under Fed.R.Civ.P. 19 and that the presence of all of them destroys diversity jurisdiction. Without diversity jurisdiction, the federal courts would have no subject matter jurisdiction over this case. Accord ing to the Masons, the co-defendants are indispensable because “any resolution by arbitration does not adjudicate all issues of law and fact between the Masons and all potential defendants.” Under Rule 19(a)(1), joinder is required if “in the person’s absence complete relief cannot be accorded among those already parties.” This is essentially what the Masons are contending. However, such a contention merely re-states the “piecemeal litigation” argument which the Supreme Court rejected in Moses H. Cone. In Moses H. Cone, the existence of the state suit against the architect did not make the architect “indispensable” to the federal court suit. While the Supreme Court recognized that any suit against the architect would necessarily take place in another forum if the architect did not consent to arbitration, nonetheless, that result did not warrant abstention. Id. at 19-21, 103 S.Ct. at 938-940. In a further attempt to demonstrate “exceptional circumstances” warranting abstention, the Masons claim that Snap-on waived its right to arbitration by failing to request arbitration within six weeks of the Masons’ written notice to Snap-on that Snap-on had violated the contract. The Masons assert that they provided written notice to Snap-on on January 23, 1992, that Snap-on was in breach of the" }, { "docid": "15455507", "title": "", "text": "the interpretation of this Contract or the performance of the respective obligations of the parties under this Contract, the difference shall be submitted to arbitration. Both clauses are standard in the insurance industry. The Federal Arbitration Act (FAA) has established a federal policy favoring arbitration and the courts are required to “rigorously enforce agreements to arbitrate.” Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) (quoting Dean Witter Reynolds v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238, 1242, 84 L.Ed.2d 158 (1985)). Further, “questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration” with “any doubts concerning the scope of arbi-trable issues ... resolved in favor of arbitration.” Moses H. Cone Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). With that standard in mind, at least three courts interpreting arbitration clauses similar to those here have permitted arbitration against a liquidator. Schacht v. Beacon Ins. Co., 742 F.2d 386, 391 (7th Cir.1984) (ordering arbitration where the arbitration clause “arguably covers” the disputed issues); Ainsworth v. Allstate Insurance Co., 634 F.Supp. 52 (W.D.Mo.1985); Bernstein v. Centaur Insurance Co., 606 F.Supp. 98 (S.D.N.Y.1984). In each case, the insolvent insurer did not explicitly agree to arbitrate disputes that might require interpretation of a state’s liquidation statute. Nevertheless, each court compelled arbitration because the disputes arose out of the parties’ pre-liqui-dation contracts. Although we have not decided this issue in the liquidation context, the Ninth Circuit Bankruptcy Appellate Panel has compelled arbitration of a federal bankruptcy claim when it found that the claims against the bankrupt company arose from the parties’ contractual relationship. Mor-Ben Ins. Mktg. Corp. v. Trident General Ins. Co., 73 B.R. 644 (9th Cir. BAP 1987). The Panel said that it was the “intent of the parties upon entering the agreement to settle their disputes through arbitration.” Id. at 647. Although the bankruptcy statute plays some role, the Panel found that the real issue was determining the “validity and amount of the insurers’ claims.” Id. Because the underlying dispute" } ]

[ { "docid": "18785146", "title": "", "text": "Bankruptcy Code indicate that § 541(a)(l)’s scope is broad,” and it quoted the following from the legislative history: The scope of this paragraph [§ 541(a)(1) ] is broad. It includes all kinds of property, including tangible or intangible property, causes of action ... and all other forms of property currently specified in section 70a of the Bankruptcy Act. United States v. Whiting Pools, Inc., 462 U.S. 198, 204-05 & n. 9, 103 S.Ct. 2309, 2313 & n. 9, 76 L.Ed.2d 515 (1983). The language of § 541(a)(1) is broad enough to cover an interest in liability insurance, namely, the debtor’s right to have the insurance company pay money to satisfy one kind of debt — debts accrued through, for example, the insured’s negligent behavior. Every court that has recently considered the specific question has held that liability insurance falls within the scope of § 541(a)(1). A.H. Robins Co. v. Piccinin, 788 F.2d at 1001-02; In re Davis, 730 F.2d 176, 184 (5th Cir.1984); In re Forty-Eight Insulators, Inc., 54 B.R. 905, 907-09 (Bankr. N.D.Ill.1985); In re J & L Transport, Inc., 47 B.R. 51, 52 (Bankr.W.D.Wisc.1985). But see In re Fay Stocking Co., 95 F.2d 961, 962-63 (6th Cir.1938). The Fourth Circuit has said: A products liability policy of the debtor is ... within [the statutory definition of “property of the estate”]: it is a valuable property of a debtor, particularly if the debtor is confronted with substantial liability claims within the coverage of the policy in which case the policy may well be ... “the most important asset of ... [the] estate.” A.H. Robins Co. v. Piccinin, 788 F.2d at 1001 (quoting In re Johns Manville Corp., 40 B.R. 219, 229 (S.D.N.Y.1984)). This judicial unanimity is not surprising. Any contrary holding could start a race to the courthouse whenever a policy is too small to satisfy several potential plaintiffs. Such a race could mean unfair results as between potential plaintiffs; it could also prevent a bankruptcy court from marshalling the insurance proceeds, and, along with other assets, arranging for their distribution so as to maximize their ability both to" } ]

[ { "docid": "8622311", "title": "", "text": "automatic stay under § 362(a)(3). See, e.g., Amedisys, 423 F.3d at 578 (quoting Licensing by Paolo, Inc. v. Sinatra (In re Gucci), 126 F.3d 380, 392 (2nd Cir.1997)); Official Comm. of Unsecured Creditors v. PSS S.S. Co. (In re Prudential Lines, Inc.), 928 F.2d 565, 574 (2d Cir.1991) (“If [the creditor] were permitted to take a worthless stock deduction ... it would have an adverse impact on [the debtor’s] ability to carryforward its [net operating loss]. Accordingly, despite the fact that [the creditor’s] action is not directed specifically at [the debtor], it is barred by the automatic stay as an attempt to exercise control over property of the estate.”); Klarchek, 508 B.R. at 397 (“[G]iven the potential adverse impact on property of the estate of the action, the action must be stayed pursuant to section 362(a)(3).”). Section 362(a)(3) “reaches farther [than other provisions in § 362], encompassing every effort to ‘exercise control over property of the estate.’ ” Klarchek, 508 B.R. at 396 (quoting Nat’l Tax Credit Partners, L.P. v. Havlik, 20 F.3d 705, 708 (7th Cir.1994)). As shown below, the Debtor’s rights under the Player Contract and his claims against RFF are property of his bankruptcy estate, and RFF’s continued prosecution of the Arbitration Action and State Court Action constituted acts to exercise control over that property in violation of § 362(a)(8). 1. The Debtor’s Rights Under the Player Contract The Debtor’s rights under the Player Contract are part of his bankruptcy estate. See Hutchins v. Fordyce Bank & Tr. Co. (In re Hutchins), 211 B.R. 325, 327 (Bankr.E.D.Ark.1997) (“Upon the filing of a bankruptcy case, contracts held by the debtor, including employment contracts, become property of the estate.”); see also Neuton v. Banning (In re Neuton), 922 F.2d 1379, 1382-83 (9th Cir.1990) (holding that a debtor’s contingent interest in future income from a spendthrift trust is property of the bankruptcy estate); Klarchek, 508 B.R. at 395 (“A debtor’s contingent interest in future income has consistently been found to be property of the bankruptcy estate.”); 11 U.S.C. § 1115 (“[Property of the estate includes ... earnings from services performed" }, { "docid": "5449639", "title": "", "text": "the argument for including NOL carryforwards as property of the bankruptcy estate is strengthened. Compare In re Beery, supra, 116 B.R. at 810 (NOL carryforward is property of the estate; fresh start policy not implicated since individual not entitled to discharge because of misconduct) with Davis, supra, 69 T.C. at 827-28 (relying on detriment to fresh start policy in case where NOL carry-forward had value only to debtor, but not to estate, to conclude that it was not property of the estate). Finally, in determining the scope of § 541 we must consider the purposes animating the Bankruptcy Code. Kokoszka v. Belford, 417 U.S. 642, 645 (1974); Lines v. Frederick, 400 U.S. 18, 19 (1970); Segal, supra, 382 U.S. at 379. Including NOL carryforwards as property of a corporate debtor’s estate is consistent with Congress’ intention to “bring anything of value that the debtors have into the estate.” H.R. Rep. No. 95-595, 95th Cong., 2d Sess. 176, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6136. Moreover, “[a] paramount and important goal of Chapter 11 is the rehabilitation of the debtor by offering breathing space and an opportunity to rehabilitate its business and eventually generate revenue.” International Ass’n of Machinists and Aerospace Workers v. Eastern Air Lines, Inc., 121 B.R. 428, 433 (S.D.N.Y.1990), aff'd, 923 F.2d 26 (2 Cir.1991). Including the right to a NOL carry-forward as property of PLI’s bankruptcy estate furthers the purpose of facilitating the reorganization of PLI. The fact that both plans for reorganization contemplated its availability to the reorganized company suggests that PLI’s $74 million NOL was a valuable asset of PLI. We hold that the right to a carryforward attributable to its $74 million NOL was property of PLI’s bankruptcy estate. IV. We turn now to PSS’ contention that the bankruptcy court erred in enjoining it from taking a worthless stock deduction on its 1988 tax return. We hold that the injunction entered by the bankruptcy court was proper. The commencement of a bankruptcy case operates to stay “any act to obtain possession of property of the estate or of property from the estate" }, { "docid": "5449631", "title": "", "text": "at 265 (“[allowing the parent to keep any refunds arising solely from a subsidiary’s losses simply because the parent and subsidiary chose a procedural device to facilitate their income tax reporting unjustly enriches the parent”). We hold that at the commencement of the bankruptcy case against it, PLI had an interest in the $74 million NOL attributable to its pre-bankruptcy operation. (B) This brings us to the question whether PLI’s interest in the right to carryforward its $74 million NOL to offset future income is property of the estate within the meaning of § 541. We hold that it is. In Segal v. Rochelle, 382 U.S. 375 (1966) (Harlan, J.), the Supreme Court, construing § 541’s predecessor, considered whether a NOL carryback that resulted in a tax refund to an individual debtor was property of that debtor’s estate. The Court held that a NOL carryback was property of an individual debtor’s estate. Id. at 380. Recognizing the “conceptual ] as well as practical ]” differences between carry-backs and carryforwards, the Court declined to decide the issue of whether NOL carryforwards were also property of the estate. Id. at 381. It expressed concern that including NOL carryforwards as property of the estate of an individual debtor could endanger the fresh start policy of the Bankruptcy Act by forcing the estate to remain open for a long period. Id. The legislative history of § 541 demonstrates that Congress agreed with the result reached by the Segal Court. “[T]he estate is comprised of all legal or equitable interest of the debtor in property, wherever located, as of the commencement of the case. The scope of this paragraph is broad. It includes all kinds of property, including tangible or intangible property, causes of action ... and all other forms of property currently specified in [the predecessor statute to § 541], ... The result of Segal v. Rochelle, 382 U.S. 375 (1966), is followed, and the right to a refund is property of the estate.” S.Rep. No. 95-989, 95th Cong. 2d Sess. 82, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5868; H.R.Rep. No. 95-595," }, { "docid": "20271635", "title": "", "text": "may carry the loss back three years and use it as a deduction in that year. NOLs that remain are applied to the next two years and deducted accordingly. Id. § 172(b)(1)(A), (b)(2). If any loss remains at the end of the three-year carryback peri- . od, it is carried forward and deducted from the taxpayer’s income over the next fifteen years (or until it is exhausted), beginning with the year after the loss was initially sustained. Id. § 172(b)(1)(B). Alternatively, the Tax Code permits the taxpayer to forego the carryback option and instead use the NOLs exclusively in future years. Id. § 172(b)(3)(C). Such an election, once made, is irrevocable for that tax year. Id. Gibson v. United States (In re Russell), 927 F.2d 413, 415 (8th Cir.1991). An NOL “car-ryback” against past earnings therefore generates a claim for a refund of taxes paid on those earnings, while an NOL “carryforward” represents the ability to shelter future income from taxation. . Although Prudential Lines and cases that followed it extended Segal's holding, the Se-gal Court expressly reserved judgment on whether future tax benefits, such as loss “car-ryforwards” (or “carryovers”) would also constitute bankruptcy estate property. The Court observed that \"a carryover into post-bankruptcy years can be distinguished both conceptually as well as practically” from a benefit available against past taxes because \"the supposed loss-carryover would still need to be matched in some future year by earnings, earnings that might never eventuate at all.\" Segal, 382 U.S. at 381, 86 S.Ct. 511. Despite that dictum, the court in Prudential Lines concluded that \"[t]he fact that the right to a[n] NOL carryforward is intangible and has not yet been reduced to a tax refund ... does not exclude it from the definition of property of the estate.” 928 F.2d at 572. That conclusion relied on the Segal Court’s reasoning that \"postponed enjoyment does not disqualify an interest as ‘property,’ \" and that \"contingency in the abstract is no bar” to finding that an interest is property of a bankruptcy estate. 382 U.S. at 380, 86 S.Ct. 511. But that reasoning in" }, { "docid": "10500608", "title": "", "text": "Village court’s ruling that a tax exemption is not property within § 362(a)(3) was unnecessary to its holding that revocation is not barred by the automatic stay. . In asserting that NOLs are not property of the estate, defendant relies on Pension Benefit Guar. Corp. v. Braniff Airways, Inc. (In re Braniff Airways, Inc.), 700 F.2d 935 (5th Cir.1983) and D.H. Overmyer Telecasting Co. v. Lake Erie Communications, Inc. (In re D.H. Overmyer Telecasting Co.), 35 B.R. 400 (Bankr. v. N.D. Ohio 1983). Braniff held that Federal Aviation Administration rules limiting air carrier operation to landing slots do not create property rights. 700 F.2d at 942. The Overmyer Court held that a license issued by the Federal Communications Commission is not property. 35 B.R. at 401-03. Both cases failed to recognize that, in enacting § 541, Congress intended inclusion of interests, whether or not transferable, in its expansion of property of the estate. Overmyer, moreover, was decided prior to the Supreme Court’s ruling in Whiting Pools that estate property is to be broadly defined and Braniff, although decided after the Supreme Court's decision, failed to cite it. Accordingly, this Court, following Bernstein v. R.C. Williams, Inc. (In re Rocky Mtn. Trucking Co.), 47 B.R. 1020 (D.Colo.1985) (holding that a license is estate property) and applying Whiting Pools, so distinguished those cases and held in Beker Ind. v. Florida Land and Water Adjudicatory Commission (In re Beker Ind. Corp.), 57 B.R. 611 (Bankr.S.D.N.Y.1986), that a debtor-in-possession’s right to truck its products from its mine, although subject to state and local regulation, lies within the purview of property of the estate. 57 B.R. at 622. The Heritage Village Court also failed to consider Whiting Pools. .Section 548(a)(1) of the Code, § 7 of the Uniform Fraudulent Conveyance Act (\"UFCA\"), and § 4(a)(1) of the Uniform Fraudulent Transfer Act (“UFTA”) invalidate transfers made with actual intent to hinder, delay or defraud present or future creditors of the transferor. Those statutes also void transfers amounting to con structive fraud, i.e., made by a transferor who is or is thereby rendered insolvent if it failed" }, { "docid": "13670251", "title": "", "text": "it is novel or contingent or because enjoyment must be postponed.” Segal v. Rochelle, 382 U.S. 375, 379, 86 S.Ct. 511, 515, 15 L.Ed.2d 428 (1966) (bankruptcy estate includes right to refund). A debtor’s contingent interest in future income has consistently been found to be property of the bankruptcy estate. See In re Neuton, 922 F.2d 1379, 1382-83 (9th Cir.1990) (collecting cases). In fact, every conceivable interest of the debtor, future, non-possessory, contingent, speculative, and derivative, is within the reach of § 541. In re Anderson, 128 B.R. 850, 853 (D.R.I.1991) (citations omitted). The question whether an interest claimed by the debtor is “property of the estate” is a federal question to be decided by federal law; however, courts must look to state law to determine whether and to what extent the debtor has any legal or equitable interests in property as of the commencement of the case. Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979); Matter of Jones, 768 F.2d 923, 927 (7th Cir.1985). Because Mr. Yonikus was a state police officer with a cause of action arising from an injury while on duty, his claim was a contingent right to future compensation under the Illinois Workers’ Compensation Act, 820 ILCS 305/1 (1993). See George W. Kennedy Const. Co., Inc. v. Industrial Com’n, 152 Ill.App.3d 114, 105 Ill.Dec. 163, 167, 503 N.E.2d 1169, 1173 (1987) (listing workers’ compensation benefits as property right). Just as Mr. Yonikus’ potential personal injury claim entered the bankruptcy estate as property, Yonikus, 974 F.2d at 905, so too the debtor’s interest in his workers’ compensation claim on the date of his Chapter 7 filing was sufficient to bring it into his bankruptcy estate under 11 U.S.C. § 541. See In re Larson, 56 B.R. 154, 155 (Bankr.D.Mont.1985). Nevertheless, some property may be removed from the sweeping scope of the bankruptcy estate. A debtor’s interest in property may be either excluded from the estate under 11 U.S.C. § 541 or exempted under § 522. As an Illinois bankruptcy court succinctly commented, (l )ogie dictates the result that" }, { "docid": "1097347", "title": "", "text": "opinion In re Beker Indus. Corp., 57 B.R. 611 (Bankr.S.D.N.Y.1986). In Beker, the court found that the debtor’s ability to truck phosphate ore on public roads pursuant to an administrative agency’s order was a license so as to be property of the estate within the meaning of § 541, stating that: Both of these cases [Overmyer and Braniff ] failed to consider either the legislative history to § 541 of the Code which defines property of an estate or United States v. Whiting Pools, Inc., 462 U.S. 198, 204, 103 S.Ct. 2309, 2313, 79 L.Ed.2d 515 (1983), where the Supreme Court, upon examination of that history, observed that “Congress intended a broad range of property to be included in the estate”. Following Whiting Pools and relying on it, the district court in Bernstein v. R.C. Williams, Inc. (In re Rocky Mountain Trucking Co.), 47 B.R. 1020 (D.Colo.1985) held that a state agency issued certificate of public convenience and necessity enabling a trucking firm to serve as a common carrier throughout the state is property of the estate, even though dormant pursuant to agency rules, and therefore consideration by the commission of post-petition failure to utilize the license was within the automatic stay provided by § 362(a)(3) of the Code. Other courts are in accord in holding similar permits to be property of an estate. See e.g., In re Golden Plan of California, Inc., 37 B.R. 167 (Bankr.E.D.Cal.1984); In re Hodges, 33 B.R. 51 (Bankr.E.D.Pa.1983); In re R.S. Pinellas Motel Partnership, 2 B.R. 113, 5 B.C.D. 1292, 1 C.B.C.2d 349 (Bankr.M.D.Fla.1979). In re Beker Indus. Corp., 57 B.R. at 622. Further, the court in Beker specifically rejected the proposition that the mere existence of state or federal regulation precludes property rights from coming within the wide horizon of property of the bankruptcy estate by ruling that: To hold otherwise would be to rule ... that a property interest subject to regulation, as nearly all are, or conditioned upon regulatory requirements, is not property of an estate. Such a ruling would contemplate that all licenses and permits issued by governmental units are" }, { "docid": "13817056", "title": "", "text": "of the choice of filing date in circumstances presented here. See Tully, 202 B.R. at 485 (holding that to allow real estate agents to file bankruptcy petitions shortly before escrow closings and then claim their commissions as post-petition earnings would circumvent the purpose of the Code). The right of a debtor to choose the time of filing does not include the right to discharge debts without turning over valuable conditional rights. Debtor relies in part on Everett v. Judson, 228 U.S. 474, 479, 33 S.Ct. 568, 569-70, 57 L.Ed. 927 (1913). However, neither § 541(a) nor the Bankruptcy Code itself was in existence when the Court decided Everett; that opinion dealt with § 70a of the old Bankruptcy Act. Everett reasoned that “[w]e think that the purpose of the law was to fix the line of cleavage with reference to the condition of the bankrupt estate as of the time at which the petition was filed....” 33 S.Ct. at 569-70. If the Court’s comment on § 70(a) of the old Bankruptcy Act were viewed as applicable to § 541 of the Bankruptcy Code, then provisions of §§ 541(a)(3) through 541(a)(7) which include some after-acquired property in the estate, expressly allowing the condition of the bankrupt estate to expand, would make no sense. Rather, the legislative history of § 541 shows that provision was intended to follow the result in Segal v. Rochelle, supra; an opinion which included contingent interests as property of the bankruptcy estate. H.R.Rep. No. 595, 95th Cong., 1st Sess. 175-76 (1977); see also S.Rep. No. 989, 95th Cong., 2d Sess. 82-83 (1978), U.S.Code Cong, and Admin.News, 5787, 6136-37, 5868-69. Enactment of § 541 considerably broadened the definition of estate property. See Neuton, 922 F.2d at 1382 (noting that while contingent interests presented a “thorny problem” under the Act, contingent interests have typically been held to property of the estate under the Code); Accord Ryerson, 739 F.2d 1423; In re Bagen, 186 B.R. 824, 826-28 (Bankr.S.D.N.Y.1995), aff'd, 201 B.R. at 642; Cooley, 87 B.R. at 438, (comparing the Code to the Act). Both the Debtor and the Trustee" }, { "docid": "13817057", "title": "", "text": "applicable to § 541 of the Bankruptcy Code, then provisions of §§ 541(a)(3) through 541(a)(7) which include some after-acquired property in the estate, expressly allowing the condition of the bankrupt estate to expand, would make no sense. Rather, the legislative history of § 541 shows that provision was intended to follow the result in Segal v. Rochelle, supra; an opinion which included contingent interests as property of the bankruptcy estate. H.R.Rep. No. 595, 95th Cong., 1st Sess. 175-76 (1977); see also S.Rep. No. 989, 95th Cong., 2d Sess. 82-83 (1978), U.S.Code Cong, and Admin.News, 5787, 6136-37, 5868-69. Enactment of § 541 considerably broadened the definition of estate property. See Neuton, 922 F.2d at 1382 (noting that while contingent interests presented a “thorny problem” under the Act, contingent interests have typically been held to property of the estate under the Code); Accord Ryerson, 739 F.2d 1423; In re Bagen, 186 B.R. 824, 826-28 (Bankr.S.D.N.Y.1995), aff'd, 201 B.R. at 642; Cooley, 87 B.R. at 438, (comparing the Code to the Act). Both the Debtor and the Trustee would draw a bright line in time. Debtor argues that the Second, Third, and Fourth Groups had no value to the estate because they were still contingent when he filed his petition, and even the First Group rights had not been exercised. The Trustee contends that all of the options had and have value to the estate because the estate became the owner of contingent rights when Debtor filed the petition and Debtor has now satisfied the contingencies. Each side advances an “all-or-nothing” proposition that fails to take into consideration the temporal spread involved in exercising the options. However, the actual value to. the estate of contingent future interests must be equal to the value of the debtor’s interest on the petition filing date. The extent of the bankruptcy estate’s interest in property cannot exceed the interest possessed by the debtor at commencement of the case. In the Matter of Wayco, 947 F.2d 1380, 1333 (7th Cir.1991). The realized or realizable value of an interest that was contingent at the time of filing is property" }, { "docid": "5449636", "title": "", "text": "the estate. As the Segal Court observed, the main hurdle to including NOL carryforwards as property of the estate is the detrimental impact it could have on the fresh start policy that is promoted by the Bankruptcy Code. Segal, supra, 382 U.S. at 381. Subsequent legislation has ameliorated that concern with respect to individual debtors and suggests that Congress intended that NOL carryforwards be included in the property of the estate of individual as well as corporate debtors. Congress provided for the tax treatment of debtors and their bankruptcy estates in § 346 of the Bankruptcy Code. With respect to individual debtors, Congress provided that the income to their estates could be taxed separately from the income to the individual debtor. 11 U.S.C. § 346(b)(1) (1988). Congress also provided that the estate succeeds to the tax attributes of individual debtors including “any loss carryover.” 11 U.S.C. § 346(i)(l)(C) (1988). To address the Segal Court’s concern that including carryforwards as property of the estate would jeopardize the fresh start policy, Congress provided that unutilized tax attributes revert to the debt- or at the conclusion of the case. 11 U.S.C. § 346(i)(2) (1988). Section 346(i) seems to contemplate that NOL carryforwards, as well as carrybacks, become property of an individual debtor's bankruptcy estate. Other subsections contemplate use of NOL carryforwards by a corporate debtor. E.g., 11 U.S.C. § 346(h) (1988) (determination of periods in which debtor may use NOL carryover); 346(j)(3) (NOL carryover of individual or corporate debtor is reduced by the amount of debt forgiven or discharged). We do not read § 346(i) as applying to corporate debtors. E.g., Maritime Asbestosis Legal Clinic v. LTV Steel Co., Inc. (In re Chateaugay Corp.), 920 F.2d 183, 187 (2 Cir.1990) (section permitting individual debtors to recover sanctions for willful violations of automatic stay cannot be read to apply to corporate debtors). Congress’ failure to include corporate debtors in that provision does not imply, however, that Congress meant to treat NOL carryfor-wards of corporate debtors differently than those of individual debtors. Since the bankruptcy estate of a corporate debtor is not a separate entity" }, { "docid": "10500609", "title": "", "text": "Braniff, although decided after the Supreme Court's decision, failed to cite it. Accordingly, this Court, following Bernstein v. R.C. Williams, Inc. (In re Rocky Mtn. Trucking Co.), 47 B.R. 1020 (D.Colo.1985) (holding that a license is estate property) and applying Whiting Pools, so distinguished those cases and held in Beker Ind. v. Florida Land and Water Adjudicatory Commission (In re Beker Ind. Corp.), 57 B.R. 611 (Bankr.S.D.N.Y.1986), that a debtor-in-possession’s right to truck its products from its mine, although subject to state and local regulation, lies within the purview of property of the estate. 57 B.R. at 622. The Heritage Village Court also failed to consider Whiting Pools. .Section 548(a)(1) of the Code, § 7 of the Uniform Fraudulent Conveyance Act (\"UFCA\"), and § 4(a)(1) of the Uniform Fraudulent Transfer Act (“UFTA”) invalidate transfers made with actual intent to hinder, delay or defraud present or future creditors of the transferor. Those statutes also void transfers amounting to con structive fraud, i.e., made by a transferor who is or is thereby rendered insolvent if it failed to receive \"reasonably equivalent value” under § 548(a)(2) of the Code and UFTA § 5(a) or \"fair consideration\" under UFCA § 4. See, Murdoch, Sartin and Zadek, Leveraged Buyouts and Fraudulent Transfers: Life After Gleneagles, 43 The Business Lawyer 1, 9-11, 13 (1987). Since our task is to define property of a bankruptcy estate in light of bankruptcy purposes as Segal commands, we consider only transfers that are fraudulent under § 548 of the Bankruptcy Code. While a trustee may bring a fraudulent transfer suit under state law, that cause of action is measured by state law. The definition of property under those statutes may be governed by purposes other than federal bankruptcy purposes. . While PSS, in its brief, argues that that result is not certain, it gives no cogent reason for the alleged lack of certainty. Under § 382 of the Internal Revenue Code, the utilization of NOL carryovers is limited if there is an ownership change defined by that section. The claiming of worthless stock deduction by a more than 49% shareholder" }, { "docid": "10500588", "title": "", "text": "it cannot be gainsaid that “the right to use the loss as an offset ... is valuable ... The market for it is restricted, of course, but this detracts nothing from its value to one in a position to utilize it.” Western Pacific R.R. Corp. v. Western Pacific R.R. Co., 345 U.S. 247, 276, 73 S.Ct. 656, 670, 97 L.Ed. 986 (1953) (Jackson, J. dissenting). It is only just and appropriate that creditors be given the opportunity to attempt to realize on that value. They have not been paid because of the very losses giving rise to the NOLs. Their short-fall should not be increased further through failure to recognize loss carryfor-ward rights as part of a bankruptcy estate. To this, defendant responds that the Internal Revenue Code does not treat NOLs as property in, for example, allocation of purchase price among assets acquired in the acquisition of a trade or business, see, I.R.C. § 1060; Temp.Treas.Reg. 1.338(b)-2T; that NOLs are more like a tax exemption held not to be property in In re Heritage Village Church-Missionary Fellowship, 87 B.R. 401, 405 (D.S.C.1988); that they are created by statute and taken away by statute; and that recognizing NOLs as property could yield “untoward results,” consisting principally of the threat of applicability of fraudulent transfer law and al leged difficulty in allocation of NOLs among affiliates in bankruptcy. Def’s Mem. at 14-20. In Segal, however, the Court held that property of an estate is to be defined by bankruptcy purposes, not by the Fifth Amendment’s Just-Compensation clause or a state taxing statute. Segal, 382 U.S. at 379, 86 S.Ct. at 514. The same reasoning applies to attempts to define estate property by the Internal Revenue Code: the purposes differ. To be sure, ability to use an NOL depends on compliance with the tax laws, just as a debtor’s ability to utilize a mine depends on compliance with applicable state and local regulation. See, Beker Ind. Corp. v. Florida Land and Water Adjudicatory Commission (In re Beker Ind. Corp.), 57 B.R. 611, 622-24 (Bankr.S.D.N.Y.1986). But that dependence does not mean the absence" }, { "docid": "5449635", "title": "", "text": "to a NOL carryforward is intangible and has not yet been reduced to a tax refund also does not exclude it from the definition of property of the estate. In re Golden Plan, supra, 37 B.R. at 169. In short, interests whose value is speculative and interests that involve intangible rights that are subject to regulation may be included as property of the estate. E.g., Neuton v. Danning (In re Neuton), 922 F.2d 1379, 1382-83 (9 Cir.1990) (interest in trust contingent on survivorship is property of the estate); Tringali v. Hathaway Mach. Co., 796 F.2d 553, 560 (1 Cir.1986) (liability insurance policy is property of the estate); Beker Indus. Corp. v. Florida Land & Water Adjudicatory Comm’n (In re Beker Indus. Corp.), 57 B.R. 611, 622 (Bankr.S.D.N.Y.1986) (right to truck products from mine is property of estate); In re Golden Plan, supra, 37 B.R. at 169 (corporate name is property of the estate). Thus, the nature of the interest involved in the instant case does not compel a conclusion that it is not property of the estate. As the Segal Court observed, the main hurdle to including NOL carryforwards as property of the estate is the detrimental impact it could have on the fresh start policy that is promoted by the Bankruptcy Code. Segal, supra, 382 U.S. at 381. Subsequent legislation has ameliorated that concern with respect to individual debtors and suggests that Congress intended that NOL carryforwards be included in the property of the estate of individual as well as corporate debtors. Congress provided for the tax treatment of debtors and their bankruptcy estates in § 346 of the Bankruptcy Code. With respect to individual debtors, Congress provided that the income to their estates could be taxed separately from the income to the individual debtor. 11 U.S.C. § 346(b)(1) (1988). Congress also provided that the estate succeeds to the tax attributes of individual debtors including “any loss carryover.” 11 U.S.C. § 346(i)(l)(C) (1988). To address the Segal Court’s concern that including carryforwards as property of the estate would jeopardize the fresh start policy, Congress provided that unutilized tax attributes" }, { "docid": "5449638", "title": "", "text": "for tax purposes, 11 U.S.C. § 346(c)(1) (1988), there was no need for Congress to provide that carryovers are transferred to the estate and then back to the corporate debtor at the conclusion of the case. Corporations attempting to reorganize under Chapter 11 are ongoing concerns that generate income used to pay pre-petition creditors. Whiting Pools, supra, 462 U.S. at 203. Furthermore, a liquidating corporation’s debts are not discharged in bankruptcy. 11 U.S.C. § 727(a)(1) (1988). The fresh start policy, therefore, does not apply to corporate debtors. City of New York v. Quanta Resources Corp. (In re Quanta Resources Corp.), 739 F.2d 912, 915 n.7 (3 Cir.1984), aff'd, 474 U.S. 494 (1986); In re Blanton, 105 B.R. 811, 824 (Bankr.W.D.Tex.1989); see also Note, Bankruptcy and the Union’s Bargain: Equitable Treatment of Collective Bargaining Agreements, 39 Stan.L.Rev. 1015, 1025 n.67 (1987) (“the fresh start policy does not apply to corporations”). Thus, the concern that the Segal Court expressed does not apply to a situation involving a corporate debtor. When the fresh start policy is not implicated, the argument for including NOL carryforwards as property of the bankruptcy estate is strengthened. Compare In re Beery, supra, 116 B.R. at 810 (NOL carryforward is property of the estate; fresh start policy not implicated since individual not entitled to discharge because of misconduct) with Davis, supra, 69 T.C. at 827-28 (relying on detriment to fresh start policy in case where NOL carry-forward had value only to debtor, but not to estate, to conclude that it was not property of the estate). Finally, in determining the scope of § 541 we must consider the purposes animating the Bankruptcy Code. Kokoszka v. Belford, 417 U.S. 642, 645 (1974); Lines v. Frederick, 400 U.S. 18, 19 (1970); Segal, supra, 382 U.S. at 379. Including NOL carryforwards as property of a corporate debtor’s estate is consistent with Congress’ intention to “bring anything of value that the debtors have into the estate.” H.R. Rep. No. 95-595, 95th Cong., 2d Sess. 176, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6136. Moreover, “[a] paramount and important goal of Chapter 11" }, { "docid": "10500605", "title": "", "text": "property of the estate.” . See, F. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 528, 537-8 (1947). . The limitations of former § 70(a)(5)’s definition of property to alienable or leviable property in the debtor's possession were discarded by Congress in enacting § 541 of the Bankruptcy Code. Congress intended to include within the § 541(a) definition of property “all interests, ... contingent interests and future interests, whether or not transferable by the debtor.” H.R.Rep. No. 595, 95th Cong. 1st Sess. 175-76 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6136. . Section 346(i) provides that loss carry forwards belong to the bankruptcy estates of individuals to the extent utilized by the trustee and revert to the debtor on closing of the case. See also, § 1398(g) of the Internal Revenue Code. It was apparently enacted to address the Supreme Court’s concern, expressed in Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966), for the fresh start individuals obtain upon discharge. See discussion infra. That the failure to expressly provide that estate property includes the right of corporate debtors to use NOLs is of no significant consequence since Congress made reference to individuals in the context of addressing that concern. .But see, Holder v. Wilson (In re Wilson), 49 B.R. 19, 20-21 (Bankr.N.D.Tex.1985), wherein the Court held that § 346(i) codified the holding in Segal and required that NOL carrybacks attributable to an individual debtor and giving rise to a tax refund be included within the definition of estate property. . See, n. 9, supra. . The language of § 541, moreover, so confirms. Section 541(a)(5) limits contingent future interests only in instances involving bequests, inheritance, matrimonial settlements and life insurance policies to the actual property so received by a debtor within 180 days of the filing of the bankruptcy petition. Other contingent future interests in property are not so limited. . Indeed, Skouras Jr. testified at the hearing that he believed that PLI’s $74 million NOL was “an important potential asset of the estate,\" Tr. at 62; that he “hoped” it would" }, { "docid": "10500589", "title": "", "text": "Village Church-Missionary Fellowship, 87 B.R. 401, 405 (D.S.C.1988); that they are created by statute and taken away by statute; and that recognizing NOLs as property could yield “untoward results,” consisting principally of the threat of applicability of fraudulent transfer law and al leged difficulty in allocation of NOLs among affiliates in bankruptcy. Def’s Mem. at 14-20. In Segal, however, the Court held that property of an estate is to be defined by bankruptcy purposes, not by the Fifth Amendment’s Just-Compensation clause or a state taxing statute. Segal, 382 U.S. at 379, 86 S.Ct. at 514. The same reasoning applies to attempts to define estate property by the Internal Revenue Code: the purposes differ. To be sure, ability to use an NOL depends on compliance with the tax laws, just as a debtor’s ability to utilize a mine depends on compliance with applicable state and local regulation. See, Beker Ind. Corp. v. Florida Land and Water Adjudicatory Commission (In re Beker Ind. Corp.), 57 B.R. 611, 622-24 (Bankr.S.D.N.Y.1986). But that dependence does not mean the absence of a property right. Id. To the extent that Heritage Village, a case where the IRS sought to revoke a debtor’s tax exempt status implies anything more than that such a revocation is exempt from the automatic stay by virtue of § 362(b)(4), see, 87 B.R. at 404, it is not followed here. In Beker it was held that similar good faith governmental revocation of a permit is not within the bar of § 362(a)(3). Of more significance is the assertion that recognition of NOL’s as estate property will induce instability in pre-bankruptcy tax returns of affiliated companies through the application of fraudulent transfer statutes such as § 548 of the Bankruptcy Code where tax savings have been achieved through the filing of a consolidated return or where a worthless stock deduction has been taken by a parent. To this is added the notion that a corporation generally has no interest in transactions in its stock. Like the Segal Court, we do not decide these issues and we note that the consequences alleged are largely" }, { "docid": "5449632", "title": "", "text": "issue of whether NOL carryforwards were also property of the estate. Id. at 381. It expressed concern that including NOL carryforwards as property of the estate of an individual debtor could endanger the fresh start policy of the Bankruptcy Act by forcing the estate to remain open for a long period. Id. The legislative history of § 541 demonstrates that Congress agreed with the result reached by the Segal Court. “[T]he estate is comprised of all legal or equitable interest of the debtor in property, wherever located, as of the commencement of the case. The scope of this paragraph is broad. It includes all kinds of property, including tangible or intangible property, causes of action ... and all other forms of property currently specified in [the predecessor statute to § 541], ... The result of Segal v. Rochelle, 382 U.S. 375 (1966), is followed, and the right to a refund is property of the estate.” S.Rep. No. 95-989, 95th Cong. 2d Sess. 82, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5868; H.R.Rep. No. 95-595, 95th Cong. 1st Sess. 367, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6323 (footnote omitted). Courts, applying Segal, have held that a subsidiary is entitled to a tax refund due to its NOL carryback to the extent that it offsets its own income. E.g., Jump, supra, 579 F.2d at 452; In re Bob Richards, supra, 473 F.2d at 264; In re Revco D.S., Inc., 111 B.R. 631, 639 (Bankr.N.D.Ohio 1990). Courts considering whether NOL carryforwards constitute property of the estate have reached varying conclusions in varying contexts. Compare Jump, supra, 579 F.2d at 453 (“the right to use its net operating loss to gain carryover tax advantage was not an asset of [a liquidating subsidiary] because its value was conditioned on the existence of future income potential of [the subsidiary]”) and Davis v. Commissioner, 69 T.C. 814, 827 (1978) (“net operating loss carryover cannot constitute property” of an individual debtor’s estate) with In re Beery, 116 B.R. 808, 810 (D.Kan.1990) (right to use NOL carryforward is property of debtor’s estate). PSS contends that Segal" }, { "docid": "20271636", "title": "", "text": "Court expressly reserved judgment on whether future tax benefits, such as loss “car-ryforwards” (or “carryovers”) would also constitute bankruptcy estate property. The Court observed that \"a carryover into post-bankruptcy years can be distinguished both conceptually as well as practically” from a benefit available against past taxes because \"the supposed loss-carryover would still need to be matched in some future year by earnings, earnings that might never eventuate at all.\" Segal, 382 U.S. at 381, 86 S.Ct. 511. Despite that dictum, the court in Prudential Lines concluded that \"[t]he fact that the right to a[n] NOL carryforward is intangible and has not yet been reduced to a tax refund ... does not exclude it from the definition of property of the estate.” 928 F.2d at 572. That conclusion relied on the Segal Court’s reasoning that \"postponed enjoyment does not disqualify an interest as ‘property,’ \" and that \"contingency in the abstract is no bar” to finding that an interest is property of a bankruptcy estate. 382 U.S. at 380, 86 S.Ct. 511. But that reasoning in Segal was addressed only to the argument that an NOL carryback was not property of the estate at the commencement of the proceeding because \"no refund could be claimed from the Government until the end of the year” of filing, during which \"earnings by the bankrupt ... might diminish or eliminate the loss-carry-back refund claim....” Id. It does not Support the broad proposition that any contingent tax attribute can necessarily be labeled as \"property.” . We have not yet addressed the question of whether NOL carrybacks or carryforwards constitute property. The closest we have come to deciding the question was an issue arising under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., rather than the I.R.C. In In re Fruehauf Trailer Corp., 444 F.3d 203 (3d Cir.2006), a debtor made an irrevocable election to increase pension benefits that denied the bankruptcy estate the ability to recoup an accumulated surplus in plan assets. We held that \"[t]his recoupment right is a transferable property interest” because, \"[a]lthough the right to" }, { "docid": "5449634", "title": "", "text": "does not control the instant case since it involved a NOL carryback rather than a NOL carryfor-ward, and an individual rather than a corporate debtor filing a consolidated return. Those distinctions do not require a contrary result here. Carryforwards differ in nature from carrybacks. Carrybacks result in the right to a tax refund of a definite amount. Carryforwards, by contrast, are speculative since their value depends on the availability of future income against which to apply them. The speculative nature of carryforwards does not place them outside the definition of property of the estate.' “[T]he term ‘property’ has been construed most generously and an interest is not outside its reach because it is novel or contingent or because enjoyment must be postponed.” Segal, supra, 382 U.S. at 379; see also H.R.Rep. No. 95-595, 95th Cong., 2d Sess. 175-76, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6136 (property of the estate “includes all interests, such as ... contingent interests and future interests, whether or not transferable by the debt- or”). The fact that the right to a NOL carryforward is intangible and has not yet been reduced to a tax refund also does not exclude it from the definition of property of the estate. In re Golden Plan, supra, 37 B.R. at 169. In short, interests whose value is speculative and interests that involve intangible rights that are subject to regulation may be included as property of the estate. E.g., Neuton v. Danning (In re Neuton), 922 F.2d 1379, 1382-83 (9 Cir.1990) (interest in trust contingent on survivorship is property of the estate); Tringali v. Hathaway Mach. Co., 796 F.2d 553, 560 (1 Cir.1986) (liability insurance policy is property of the estate); Beker Indus. Corp. v. Florida Land & Water Adjudicatory Comm’n (In re Beker Indus. Corp.), 57 B.R. 611, 622 (Bankr.S.D.N.Y.1986) (right to truck products from mine is property of estate); In re Golden Plan, supra, 37 B.R. at 169 (corporate name is property of the estate). Thus, the nature of the interest involved in the instant case does not compel a conclusion that it is not property of" }, { "docid": "5449633", "title": "", "text": "95th Cong. 1st Sess. 367, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6323 (footnote omitted). Courts, applying Segal, have held that a subsidiary is entitled to a tax refund due to its NOL carryback to the extent that it offsets its own income. E.g., Jump, supra, 579 F.2d at 452; In re Bob Richards, supra, 473 F.2d at 264; In re Revco D.S., Inc., 111 B.R. 631, 639 (Bankr.N.D.Ohio 1990). Courts considering whether NOL carryforwards constitute property of the estate have reached varying conclusions in varying contexts. Compare Jump, supra, 579 F.2d at 453 (“the right to use its net operating loss to gain carryover tax advantage was not an asset of [a liquidating subsidiary] because its value was conditioned on the existence of future income potential of [the subsidiary]”) and Davis v. Commissioner, 69 T.C. 814, 827 (1978) (“net operating loss carryover cannot constitute property” of an individual debtor’s estate) with In re Beery, 116 B.R. 808, 810 (D.Kan.1990) (right to use NOL carryforward is property of debtor’s estate). PSS contends that Segal does not control the instant case since it involved a NOL carryback rather than a NOL carryfor-ward, and an individual rather than a corporate debtor filing a consolidated return. Those distinctions do not require a contrary result here. Carryforwards differ in nature from carrybacks. Carrybacks result in the right to a tax refund of a definite amount. Carryforwards, by contrast, are speculative since their value depends on the availability of future income against which to apply them. The speculative nature of carryforwards does not place them outside the definition of property of the estate.' “[T]he term ‘property’ has been construed most generously and an interest is not outside its reach because it is novel or contingent or because enjoyment must be postponed.” Segal, supra, 382 U.S. at 379; see also H.R.Rep. No. 95-595, 95th Cong., 2d Sess. 175-76, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6136 (property of the estate “includes all interests, such as ... contingent interests and future interests, whether or not transferable by the debt- or”). The fact that the right" } ]

[ { "docid": "22796004", "title": "", "text": "from a substantial effect on interstate commerce. Unlike the railroads, local highways are built, owned and maintained by the state or its municipal subdivisions. The state has a primary and immediate concern in their safe and economical administration. The present regulations, or any others of like purpose, if they are to accomplish their end, must be applied alike to interstate and intrastate traffic both' moving in large volume over the highways. The fact that they affect alike shippers in interstate and intrastate commerce in large number within as well as without the state is a safeguard against their abuse. From the beginning it has been recognized that a state can, if it sees fit, build and maintain its own highways, canals and railroads and that in the absence of Congressional action their regulation is peculiarly within its competence, even though interstate commerce is materially affected. Minnesota Rate Cases, 230 U. S. 352, 416. Congress not acting, state regulation of intrastate carriers has been upheld regardless of its effect upon interstate commerce. Id. With respect to the extent and nature of the local interests to be protected and the unavoidable effect upon interstate and intrastate commerce alike, regulations of the use of the highways are akin to local regulation of rivers, harbors, piers and docks, quarantine regulations, and game laws, which, Congress not acting, have been sustained even though they materially interfere with interstate commerce. The nature of the authority of the state over its own highways has often been pointed out by this Court. It may not, under the guise of regulation, discriminate against interstate commerce. But “In the absence of national legislation especially covering the subject of interstate commerce, the State may rightly prescribe uniform regulations adapted to promote safety upon its highways and the conservation of their use, applicable alike to vehicles moving in interstate commerce and those of its own citizens.” Morris v. Duby, 274 U. S. 135, 143. This formulation has been repeatedly affirmed, Clark v. Poor, 274 U. S. 554, 557; Sprout v. South Bend, 277 U. S. 163, 169; Sproles v. Binford, 286 U." } ]

[ { "docid": "22629685", "title": "", "text": "of Congress discloses no provision, express or implied, by which there is withheld from the State its ordinary police power to conserve the highways in the interest of the public and to prescribe such reasonable regulations for their use as may be wise to prevent injury and damage to them. In the absence of national legislation especially covering the subject of interstate commerce, the State may rightly prescribe uniform regulations adapted to promote safety upon its highways and the conservation of their use, applicable alike to vehicles moving in interstate commerce and those of its own citizens.” In the instant case, there is no discrimination against interstate commerce and the regulations adopted by the State, assuming them to be otherwise valid, fall within the established principle that in matters admitting of diversity of treatment, according to the special requirements of local conditions, the States may act within their respective jurisdictions until Congress sees fit to act. Minnesota Rate Cases, 230 U. S. 352, 399, 400. As this principle maintains essential local authority to meet local needs, it follows that one State cannot establish standards which would derogate from the equal power of other States to make regulations of their own. See Hendrick v. Maryland, 235 U. S. 610, 622; Kane v. New Jersey, 242 U. S. 160, 167; Michigan Commission v. Duke, 266 U. S. 570, 576; Interstate Busses Corp. v. Blodgett, 276 U. S. 245, 250, 251; Sprout v. South Bend, 277 U. S. 163, 169; Continental Baking Co. v. Woodring, ante, p. 352. Third. The conclusion that the State had authority to impose the limitation of § 5 for the purpose of protecting its highways meets the contention based on the contract clause of the Federal Constitution. Contracts which relate to the use of the highways must be deemed to have been made in contemplation of the regulatory authority of the State. With respect to the power of Congress in the regulation of interstate commerce, this Court has had frequent occasion to observe that it is not fettered by the necessity of maintaining existing arrangements which would conflict" }, { "docid": "17921003", "title": "", "text": "is that even if Congress intended to punish unlicensed intrastate firearms sales, it was powerless to do so and was acting unconstitutionally. In Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), the Supreme Court analyzed anew the scope of Congressional power to regulate purely intrastate activities under the Commerce Clause. As the Court stated: “The Commerce Clause reaches, in the main, three categories of problems. First, the use of channels of interstate or foreign commerce which Congress deems are being misused, Second, protection of the instrumentalities of interstate commerce, Third, those activities affecting commerce.” 402 U.S. at 150, 91 S.Ct. at 1359. The Perez Court reaffirmed, under the third category of Congressional power, that Congress can constitutionally regulate a class of activities if that class has an effect on interstate commerce. “Where the class of-activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class.” 402 U.S. at 154, 91 S.Ct. at 1361. See also Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964); United States v. Darby, 312 U.S. 100, 120-121, 61 S.Ct. 451, 85 L.Ed. 609 (1941). At issue in the Perez case was a federal act banning intrastate extortionate credit transactions. 18 U.S.C. § 891 et seq. The Supreme Court, it should be noted, repeatedly has upheld Congressional regulation of purely intrastate activity. United States v. Wrightwood Dairy Co., 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726 (1942) (intrastate milk prices); Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092 (1938) (intrastate tobacco markets); Simpson v. Shepard, 230 U.S. 352, 33 S.Ct. 729, 57 L.Ed. 1511 (1913) (intrastate rail rates). As the Supreme Court wrote in the Heart of Atlanta case, supra: “If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.” 379 U.S. at 258, 85 S.Ct. at 358. Just as Congress made findings that intrastate credit transactions were" }, { "docid": "3827497", "title": "", "text": "powers,” which the Constitution specifically reserves to the states. The ostensible basis for this regulation under the commerce clause appears in the “Congressional Findings and Decision of Policy” contained in the Act. 21 U.S.C.A. § 360a Note. There Congress found a clear danger of national proportions in unregulated traffic of depressant and stimulant drugs necessitating its action respecting interstate traffic in such drugs; that since interstate traffic cannot be distinguished from intrastate traffic due to lack of indicia of drug origin, the former cannot effectively be regulated without as well regulating the latter; and that regulation of interstate commerce, without regulation of intrastate commerce, would adversely affect the former. It may be questioned whether the problem of identifying the origin of a drug would alone justify regulation as broad as that here imposed which encompasses drugs admittedly local in origin and identifiable as such. (It would be no defense to the crime here charged to prove that the LSD was local in origin.) This question, however, we need not reach. Regulation of intrastate commerce in “stimulant and depressant” drugs is constitutionally justifiable because, under the congressional findings, not only is there a problem of identifying their origin, but such commerce also adversely affects interstate commerce in these drugs. Where intrastate transactions are so commingled with and have such an economic effect upon interstate transactions that regulation of both types of commerce is required if there is to be effective regulation of either, the Supreme Court has in the past upheld the regulation of purely local traffic. In the Minnesota Rate Cases, 230 U.S. 352, 33 S.Ct. 729, 57 L.Ed. 1511 (1913), and the Shreveport Case (Houston, East & West Texas Railway Co. v. United States), 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341 (1914), it was held that intrastate railroad rates could be federally controlled because of their competitive relation to interstate rates. If left unregulated, lower intrastate rates could severely injure interstate railroad commerce. In the Minnesota Rate Cases the Court said, 230 U.S. at 399, 33 S.Ct. at 739: “The authority of Congress extends to every part" }, { "docid": "22714181", "title": "", "text": "per cent of the crop is marketed in interstate commerce, the program may be taken to have a substantial effect on the commerce, in placing restrictions on the sale and marketing of a product to buyers who eventually sell and ship it in interstate commerce. The question is thus presented whether in the absence of Congressional legislation prohibiting or regulating the transactions affected by the state program, the restrictions which it imposes upon the sale within the state of a commodity by its producer to a processor who contemplates doing, and in fact does, work upon the commodity before packing and shipping it in interstate commerce, violate the Commerce Clause. The governments of the states are sovereign within their territory save only as they are subject to the prohibitions of the Constitution or as their action in some measure conflicts with powers delegated to the National Govern ment, or with Congressional legislation enacted in the exercise of those powers. This Court has repeatedly held that the grant of power to Congress by the Commerce Clause did not wholly withdraw from the states the authority to regulate the commerce with respect to matters of local concern, on which Congress has not spoken. Minnesota Rate Cases, 230 U. S. 352, 399-400; South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177, 187, et seq.; California v. Thompson, 313 U. S. 109, 113-14 and cases cited; Duckworth v. Arkansas, 314 U. S. 390. A fortiori there are many subjects and transactions of local concern not themselves interstate commerce or a part of its operations which are within the regulatory and taxing power of the states, so long as state action serves local ends and does not discriminate against the commerce, even though the exercise of those powers may materially affect it. Whether we resort to the mechanical test sometimes applied by this Court in determining when interstate commerce begins with respect to a commodity grown or manufactured within a state and then sold and shipped out of it — or whether we consider only the power of the state in the absence" }, { "docid": "8286827", "title": "", "text": "instant case. In Road Review League v. Boyd, 270 F.Supp. 650 (S.D.N.Y.1967), and in DeLong Corp. v. Oregon State Highway Commission, 233 F.Supp. 7 (D.Ore.1964) , aff’d. 343 F.2d 911 (9th Cir. 1965) , cert. denied, 382 U.S. 877, 86 S.Ct. 161, 15 L.Ed.2d 119 (1965), the courts held that by participating in the federal highway program and seeking federal funds, the state does not waive its immunity from suit. In DeLong, the Court reasoned that any waiver of immunity must be made expressly or by overwhelming implication, and the mere acceptance of funds under the Federal-Aid Highway Act demonstrated neither express nor implied waiver. Although the factual situations of these cases differ from that in the instant case, their reasoning is highly pertinent, and we specifically adopt their holdings. 2. Entry into Interstate Commerce Plaintiffs, alternatively, argue that the state, in constructing an interstate highway, has voluntarily entered into the federally regulated area of interstate commerce and, therefore, is amenable to suit for its acts or omissions in violation of federal regulations. Initially, it should be noted that the mere entry of a state into a field of congressional regulation will not subject it to suit by private individuals. Red Star Towing & Transp. Co. v. Dep’t. of Transp. of New Jersey, supra, 423 F.2d at 106. In Mahler v. United States, 306 F.2d 713 (3rd Cir.) cert. denied 371 U.S. 923, 83 S.Ct. 290, 9 L.Ed.2d 231 (1962), the Court of Appeals stated: “But it is clear nonetheless that the construction, maintenance and the regulations of highways have remained state functions. South Carolina [State] Highway Dep’t. v. Barnwell Bros., 303 U.S. 177, 187, 58 S.Ct. 510, 514, 82 L.Ed. 734 (1938). In the cited case Mr. Justice Stone said: ‘From the beginning it has been recognized that a state can, if it sees fit, build and maintain its own highways, canals and railroads and that in the absence of Congressional action their regulation is peculiarly within its competence, even though interstate commerce is materially affected. Minnesota Rate Cases [Simpson v. Shepard], 230 U.S. 352, 416 [33 S.Ct. 729," }, { "docid": "22318879", "title": "", "text": "over which the state has a far more extensive control than over interstate railroads. In that case, and in Maurer v. Hamilton, supra, we were at pains to point out that there are few subjects of state regulation affecting interstate commerce which are so peculiarly of local concern as is the use of the state’s highways. Unlike the railroads local highways are built, owned and maintained by the state or its municipal subdivisions. The state is responsible for their safe and economical administration. Regulations affecting the safety of their use must be applied alike to intrastate and interstate traffic. The fact that they affect alike shippers in interstate and intrastate commerce in great numbers, within as well as without the state, is a safeguard against regulatory abuses. Their regulation is akin to quarantine measures, game laws, and like local regulations of rivers, harbors, piers, and docks, with respect to which the state has exceptional scope for the exercise of its regulatory power, and which, Congress not acting, have been sustained even though they materially interfere with interstate commerce (303 U. S. at 187-188 and cases cited). The contrast between the present regulation and the full train crew laws in point of their effects on the commerce, and the like contrast with the highway safety regulations, in point of the nature of the subject of regulation and the state’s interest in it, illustrate and emphasize the considerations which enter into a determination of the relative weights of state and national interests where state regulation affecting interstate commerce is attempted. Here examination of all the relevant factors makes it plain that the state interest is outweighed by the interest of the nation in an adequate, economical and efficient railway transportation service, which must prevail. Reversed. Me. Justice Rutledge concurs in the result. See Senate Report No. 416, 75th Cong., 1st Sess.; 81 Cong. Rec. 7596; and Hearings before House Committee on Interstate and Foreign Commerce, 75th Cong., 3d Sess., S. 69, Train Lengths. In applying this rule the Court has often recognized that to the extent that the burden of state regulation" }, { "docid": "17144778", "title": "", "text": "the same railroad, as to make it certain that the safety of the interstate traffic and of those who are' employed in its movement will be promoted in a real or substantial sense by applying the requirements of these acts to vehicles used in moving the traffic which is intrastate as well as to those used in moving that which is interstate? If the answer to this question, as doubly stated, be in the affirmative, then the principal question must be answered in the same way. And this is so, not because Congress possesses any power to regulate intrastate commerce as such, but because its power to regulate interstate commerce is plenary, and competently may be exerted to secure the safety of the persons and property transported therein and of those who are employed in such transportation, no matter what ma\\ be the source of the dangers which threaten it. That is to say, it is no objection to such an exertion of this power that the dangers intended to be avoided arise, in whole or in part, out of matters connected with intrastate commerce.” (Italics ours.) In the Minnesota Rate Cases, 230 U.S. 352, 399, 33 S.Ct. 729, 739, 57 L.Ed. 1511, 48 L.R.A.(N.S.) 1151, Ann.Cas.1916A, 18, the court further emphasized the power of Congress to regulate the affairs of interstate carriers with respect to matters affecting interstate commerce, notwithstanding the commingling of interstate and in trastate operations, saying: “The authority of Congress extends to every part of interstate commerce, and to every instrumentality or agency by which it is carried on; and the full control by Congress of the subjects committed to its regulation is not to be denied or thwarted by the commingling of interstate and intrastate operations. This is not to say that the nation may deal with the internal concerns of the state, as such, but that the execution by Congress of its constitutional power to regulate interstate commerce is not limited by the fact that jntrastate transactions may have become so interwoven therewith that the effective government of the former incidentally controls the latter." }, { "docid": "14419433", "title": "", "text": "the cumulative effect on interstate commerce becomes at once apparent: This court holds that even though the activities of appellant were begun and finished within Minnesota, such activity is subject to federal regulation because of its effect upon interstate commerce. Moreover, the wholesalers from whom the liquor was purchased were interstate operators. There was a practical continuity of movement from the distillery to appellant’s place of business. The control of’ intrastate liquor business by the federal government is not unique. There are many familiar examples of incidental control of certain activities normally beyond Congressional reach. E.g. Minnesota Rate Cases, Simpson v. Shepard, 1913, 230 U.S. 352, 33 S.Ct. 729, 57 L.Ed. 1511 (regulation of intrastate rail rates); United States v. Wrightwood Dairy Co., 1942, 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726 (regulation of intrastate milk prices); Mulford v. Smith, 1938, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092 (regulation of intrastate tobacco market). - The power to regulate interstate commerce is not the only ground for sus taining the constitutionality of the Federal Alcohol Administration Act. In dealing with the appellant’s contention that the Act was unconstitutional if it assumes to require wholesalers who sell for resale in intrastate commerce to have a basic permit, the trial court stated: “In view of the broad powers of the Government with respect to the enforcement of its revenue laws, the Act irrespective of interstate commerce is reasonably related to the protection of government revenue.” We think the trial court was entirely sound in its statement and that the appellant’s contention that the Act has nothing to do with revenue and serves no purpose for protecting revenue cannot be upheld. On two prior occasions this court has dealt with that precise argument. It has held that a statute regulating the refill of liquor bottles was reasonably related to the protection of the revenue and also that a statute with the primary purpose of suppressing the drug habit bore a substantial relation to revenue. United States v. Goldberg, 8 Cir., 1955, 225 F.2d 180, 186, 188; Hughes v. United States, 8" }, { "docid": "22796005", "title": "", "text": "the extent and nature of the local interests to be protected and the unavoidable effect upon interstate and intrastate commerce alike, regulations of the use of the highways are akin to local regulation of rivers, harbors, piers and docks, quarantine regulations, and game laws, which, Congress not acting, have been sustained even though they materially interfere with interstate commerce. The nature of the authority of the state over its own highways has often been pointed out by this Court. It may not, under the guise of regulation, discriminate against interstate commerce. But “In the absence of national legislation especially covering the subject of interstate commerce, the State may rightly prescribe uniform regulations adapted to promote safety upon its highways and the conservation of their use, applicable alike to vehicles moving in interstate commerce and those of its own citizens.” Morris v. Duby, 274 U. S. 135, 143. This formulation has been repeatedly affirmed, Clark v. Poor, 274 U. S. 554, 557; Sprout v. South Bend, 277 U. S. 163, 169; Sproles v. Binford, 286 U. S. 374, 389, 390; cf. Morf v. Bingaman, 298 U. S. 407, and never disapproved. This Court has often sustained the exercise of that power although it has burdened or impeded interstate commerce. It has upheld weight limitations lower than those presently imposed, applied alike to motor traffic moving interstate and intrastate. Morris v. Duby, supra; Sproles v. Binford, supra. Restrictions favoring passenger traffic over the carriage of interstate merchandise by truck have been similarly sustained, Sproles v. Binford, supra; Bradley v. Public Utilities Comm’n, 289 U. S. 92, as has the exaction of a reasonable fee for the use of the highways. Hendrick v. Maryland, 235 U. S. 610; Kane v. New Jersey, 242 U. S. 160; Interstate Busses Corp. v. Blodgett, 276 U. S. 245; Morf v. Bingaman, supra; cf. Ingels v. Morf, 300 U. S. 290. In each of these cases regulation involves a burden on interstate commerce. But so long as the state action does not discriminate, the burden is one which the Constitution permits because it is an inseparable incident" }, { "docid": "23323280", "title": "", "text": "accept appellants’ version of the facts. See, e. g., Proctor v. Sagamore Big Game Club, 265 F.2d 196 (3 Cir.), cert. denied, 361 U.S. 831, 80 S.Ct. 81, 4 L.Ed.2d 73 (1959). When the ease is viewed in this light and the exception provisions of 28 U.S.C. § 2680 are, for the moment, put to one side, there is no doubt that under the law of Pennsylvania the United States must be deemed to have breached its duty to the plaintiffs, if the provisions referred to in the preceding paragraph of this opinion for approval of the project and for its inspection imposed duties for the benefit of the travelling public. See Bollin v. Elevator Construction & Repair Co., 361 Pa. 7, 63 A.2d 19, 6 A.L.R.2d 277 (1949). Should this be so, recovery may be had by the plaintiffs against the United States under the Federal Tort Claims Act, which provides that the government shall be held liable when injury or death is caused by the negligent or wrongful act or omission of an employee of the government while acting within the scope of his office or employment and under circumstances where the United States, if a private person, would be liable in accordance with the law of the place where the act or omission occurred, 28 U.S.C. § 1346(b). Our inquiry therefore must be directed toward ascertaining the intent of Congress in enacting the pertinent legislation. Our conclusions are aided greatly by the relevant legislative history. We state preliminarily that when legislating in respect to roads Congress acts under the authority conferred upon it by Article I, Section 8, of the Constitution to regulate interstate commerce, to establish post roads, and to provide by expenditure of tax revenues for the National Defense and the General Welfare. But it is clear nonetheless that the construction, maintenance and the regulation of highways have remained state functions. South Carolina State Highway Department v. Barnwell Bros., 303 U.S. 177, 187, 58 S.Ct. 510, 514, 82 L.Ed. 734 (1938). In the cited case Mr. Justice Stone said: \"From the beginning it has been" }, { "docid": "3827498", "title": "", "text": "“stimulant and depressant” drugs is constitutionally justifiable because, under the congressional findings, not only is there a problem of identifying their origin, but such commerce also adversely affects interstate commerce in these drugs. Where intrastate transactions are so commingled with and have such an economic effect upon interstate transactions that regulation of both types of commerce is required if there is to be effective regulation of either, the Supreme Court has in the past upheld the regulation of purely local traffic. In the Minnesota Rate Cases, 230 U.S. 352, 33 S.Ct. 729, 57 L.Ed. 1511 (1913), and the Shreveport Case (Houston, East & West Texas Railway Co. v. United States), 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341 (1914), it was held that intrastate railroad rates could be federally controlled because of their competitive relation to interstate rates. If left unregulated, lower intrastate rates could severely injure interstate railroad commerce. In the Minnesota Rate Cases the Court said, 230 U.S. at 399, 33 S.Ct. at 739: “The authority of Congress extends to every part of interstate commerce * * * and the full control by Congress of the subjects committed to its regulation is not to be denied or thwarted by the commingling of interstate and intrastate operations. This is not to say that the Nation may deal with the internal concerns of the State, as such, but that the execution by Congress of its constitutional power to regulate interstate commerce is not limited by the fact that intrastate transactions may have become so interwoven therewith that the effective government of the former incidentally controls the latter. This conclusion necessarily results from the supremacy of the national power within its appointed sphere.” This rationale was later adopted to sustain federal regulation of the price of milk produced and sold intrastate in United States v. Wrightwood Dairy, 315 U.S. 110, 119, 62 S.Ct. 523, 526, 86 L.Ed. 726 (1942), where the Court said: “The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate" }, { "docid": "22623191", "title": "", "text": "of these contentions is emphasized in these cases., and in others of like nature, by the extreme difficulty and intricacy of the calculations which must be made in the effort to establish a segregation of intrastate business for the purpose of determining the return to which the carrier is properly entitled therefrom. But these considerations are for the practical judgment of Congress in determining the extent of the regulation necessary under existing conditions of transportation to conserve and promote the interests of interstate commerce. If the situation has become such, by reason of the inter- blending, of the interstate and intrastate operations of interstate carriers, that adequate regulation'of their interstate rates cannot be maintained without imposing requirements with respect to' their intrastate rates which substantially affect the former, it is for Congress to determine, within the limits of its constitutional authority over interstate commerce and its instruments the measure of the regulation it should supply. It is the function of this court to interpret and apply the law already- enacted, but not under the guise of construction to provide a more comprehensive scheme of regulation than Congress has decided upon. Nor, in the absence of Federal action, may we deny effect to the laws of the State enacted within the field which it is entitled to occupy until'its authority is limited through the exertion by Congress of its paramount constitutional power. Second. Are the State’s acts and orders confiscatory? The rate-making power is a legislative power and necessarily implies a range of legislative discretion. We do not sit as a board of revision to substitute our judgment for that of the legislature, or of the commission lawfully constituted by it, as to matters within the province of either. San Diego Land & Town Co. v. Jasper, 189 U. S. 439, 446. The case falls within a well defined category. Here we have a general schedule of rates, involving the profitableness of the intrastate operations of the carrier taken as a whole, and the inquiry is whether the State has overstepped the constitutional limit by making the rates so unreasonably low" }, { "docid": "17921004", "title": "", "text": "See also Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964); United States v. Darby, 312 U.S. 100, 120-121, 61 S.Ct. 451, 85 L.Ed. 609 (1941). At issue in the Perez case was a federal act banning intrastate extortionate credit transactions. 18 U.S.C. § 891 et seq. The Supreme Court, it should be noted, repeatedly has upheld Congressional regulation of purely intrastate activity. United States v. Wrightwood Dairy Co., 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726 (1942) (intrastate milk prices); Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092 (1938) (intrastate tobacco markets); Simpson v. Shepard, 230 U.S. 352, 33 S.Ct. 729, 57 L.Ed. 1511 (1913) (intrastate rail rates). As the Supreme Court wrote in the Heart of Atlanta case, supra: “If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.” 379 U.S. at 258, 85 S.Ct. at 358. Just as Congress made findings that intrastate credit transactions were part of a class of activities amenable to federal regulation, the Act before this court reveals detailed findings of the interrelationship between the business of selling guns and interstate crime and inter state trafficking in guns. Congress found specifically that: “[0]nly through adequate Federal control over interstate and foreign commerce in these weapons, and over all persons engaging in the business of importing, manufacturing, or dealing in them, can this grave problem (interstate trafficking in firearms) be properly dealt with . ” P.L. 90-351, § 901(a)(3), 82 Stat. 225 (emphasis added). See S.Rep. No. 1097, swpra, at pp. 2163-66. This court is unwilling to strike down these findings. Congress need not make specific findings that there is an effect on interstate commerce by a specific activity. 402 U.S. at 156, 91 S.Ct. 1357. There has been federal legislation regulating interstate commerce in firearms since the Federal Firearms Act, 52 Stat. 1250, was enacted in 1938. This regulation has been upheld by the courts. Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied" }, { "docid": "8286828", "title": "", "text": "should be noted that the mere entry of a state into a field of congressional regulation will not subject it to suit by private individuals. Red Star Towing & Transp. Co. v. Dep’t. of Transp. of New Jersey, supra, 423 F.2d at 106. In Mahler v. United States, 306 F.2d 713 (3rd Cir.) cert. denied 371 U.S. 923, 83 S.Ct. 290, 9 L.Ed.2d 231 (1962), the Court of Appeals stated: “But it is clear nonetheless that the construction, maintenance and the regulations of highways have remained state functions. South Carolina [State] Highway Dep’t. v. Barnwell Bros., 303 U.S. 177, 187, 58 S.Ct. 510, 514, 82 L.Ed. 734 (1938). In the cited case Mr. Justice Stone said: ‘From the beginning it has been recognized that a state can, if it sees fit, build and maintain its own highways, canals and railroads and that in the absence of Congressional action their regulation is peculiarly within its competence, even though interstate commerce is materially affected. Minnesota Rate Cases [Simpson v. Shepard], 230 U.S. 352, 416 [33 S.Ct. 729, 57 L.Ed. 1511].” 306 F.2d at 716. We have heretofore emphasized the fact that the Commonwealth, in constructing federal aid highways, has operated solely within its borders. This is because in the absence of federal regulation, the state may regulate its own intrastate activities, notwithstanding their effect on interstate commerce. Under the law of Pennsylvania, the Commonwealth is “immune for liability in trespass for the negligence of its agents and employees in the construction, maintenance and re pair of a highway.” Rader v. Pennsylvania Turnpike Comm’n., 407 Pa. 609, 611, 182 A.2d 199, 200 (1962). There is no Pennsylvania statute waiving its Eleventh Amendment or sovereign immunity to a suit in trespass for negligence in the construction of either a state or interstate highway. In the absence of a statutory waiver by the state, we turn our attention to the question whether under the Federal-Aid Highway Act, 23 U.S.C. § 101 et seq. and the Highway Safety Act, 23 U.S.C. § 401 et seq., Congress has acted in such a manner as to condition the" }, { "docid": "22623123", "title": "", "text": "in another, according to circumstances as they may be found by the courts, because they are vital principles which constitute the very structure of our dual form of government.” The controversy thus arises from opposing conceptions of the fundamental law, and of the scope and effect of Federal legislation, rather than from differences with respect to the salient facts. For the purpose of the present inquiry, the rates fixed by the State must be assumed to be reasonable rates so far as intrastate traffic is concerned; that is, they must be taken to be rates which the State, in the exercise of its legislative judgment, could constitutionally fix for intrastate transportation separately considered. If the state rates are not of this character — a question to be dealt with later — :they cannot be sustained in any event; but, assuming them to be otherwise valid, the decree below, with respect to the present branch of the case, rests upon two grounds: (1) That the action of the State imposes a direct burden upon interstate commerce; and (2) that it is in conflict with the provisions of the Act to Regulate Commerce. These grounds are distinct. If a state enactment imposes a direct burden upon interstate commerce, it must fall regardless of Federal legislation.- The point of such an objection is not that Congress has acted, but that the State has directly restrained that which in the absence of Federal regulation should be free. If the acts of Minnesota constitute a direct burden upon interstate commerce, they would be invalid without regard to the exer-. cise of Federal authority touching the interstate rates said to be affected. On the other hand, if the State, in the absence of Federal legislation, would have had the power to prescribe the rates here assailed, the question remains whether its action is void as being repugnant to the statute which Congress has enacted. Prior to the passage of the Act to Regulate Commerce, carriers fixed their interstate rates free frotn the actual exertion of Federal control; and under that act, as it stood until the" }, { "docid": "14419432", "title": "", "text": "L.Ed. 936.” United States v. Darby, 1940, 312 U.S. 100, 118, 61 S.Ct. 451, 459, 85 L.Ed. 609. See also Wickard v. Filburn, 1942, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122. This does not advance the proposition that Congress, entirely apart from delegated powers, may enact measures governing local business. It may do so only when the local activity to be regulated substantially affects interstate commerce. See Mandeville Island Farms v. American Crystal Sugar Co., 1948, 334 U.S. 219, 68 S.Ct. 996, 92 L.Ed. 1328. It is true that distinctions have been made as to “direct” and “indirect” effects on interstate commerce, “indirect” effects being outside the scope of federal regulation. Schechter Poultry Corp. v. United States, 1934, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570. A single transaction involving the sale of liquor or even, as we have in this case, a series of sales by one individual entirely consummated within one state may be of little moment to the course of interstate traffic, yet when combined with many similar sales the cumulative effect on interstate commerce becomes at once apparent: This court holds that even though the activities of appellant were begun and finished within Minnesota, such activity is subject to federal regulation because of its effect upon interstate commerce. Moreover, the wholesalers from whom the liquor was purchased were interstate operators. There was a practical continuity of movement from the distillery to appellant’s place of business. The control of’ intrastate liquor business by the federal government is not unique. There are many familiar examples of incidental control of certain activities normally beyond Congressional reach. E.g. Minnesota Rate Cases, Simpson v. Shepard, 1913, 230 U.S. 352, 33 S.Ct. 729, 57 L.Ed. 1511 (regulation of intrastate rail rates); United States v. Wrightwood Dairy Co., 1942, 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726 (regulation of intrastate milk prices); Mulford v. Smith, 1938, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092 (regulation of intrastate tobacco market). - The power to regulate interstate commerce is not the only ground for sus taining the constitutionality of the" }, { "docid": "8626439", "title": "", "text": "of the Federal Congress, the further question is presented: Does the case come within that class wherein the State may regulate the.matter legislated upon until Congress has acted by virtue of the supreme authority given it by virtue of the commerce clause of the Constitu tion? In numerous instances this court has sustained local enactments, passed in the exercise of the police power of the State, in the interest of the public health and safety, notwithstanding the regulation may incidentally or indirectly affect interstate commerce. The subject was given much consideration in the Minnesota Rate Cases, 230 U. S. 352, and the previous cases dealing with this subject are therein collected and reviewed. In the light of these cases, and upon principle, the conclusion is reached that it is compétent for the Sta,te to provide for local improvements or facilities, or to adopt- reasonable measures in the interest of the health, safety and welfare of the people, notwithstanding such regulations might incidentally and indirectly involve interstate commerce. Summing up the .matter, it is there stated (p. 402): “Our system of government is a practical adjustment by which the National authority as conferred by the Constitution is maintained in its full scope without unnecessary loss of local efficiency. Where the subj ect is peculiarly one of local concern, and from its nature belongs to the class with which the State appropriately deals in making reasonable provision for local, needs, it cannot be regarded as left to.the unrestrained will of individuals because Congress has not acted, although it may have such a relation to interstate commerce as to be within the reach of the Federal power. In such case, Congress must be the judge of the necessity of Federal action. Its paramount authority always enables it to intervene at its discretion for the complete and effective government of that which has been committed to its care, and, for this purpqse and to this extent, in response to a conviction of national need, to displace local laws by substituting laws of its own. The successful working of our constitutional system has thus been" }, { "docid": "23323282", "title": "", "text": "recognized that a state can, if it sees fit, build and maintain its own highways, canals and railroads and that in the absence of Congressional action their regulation is peculiarly within its competence, even though interstate commerce is materially affected. Minnesota Rate Cases [Simpson v. Shepard], 230 U.S. 352, 416 [33 S.Ct. 729, 57 L.Ed. 1511]. Congress not acting, state regulation of intrastate carriers has been upheld regardless of its effect upon interstate commerce. Id. With respect to the extent and nature of the local interests to be protected and the unavoidable effect upon interstate and intrastate commerce alike, regulations of the use of the highways are akin to local regulation of rivers, harbors, piers and docks, quarantine regulations, and game laws, which, Congress not acting, have been sustained even though they materially interfere with interstate commerce.” 303 U.S. at 187-188, 58 S.Ct. at 515. In note 5 cited to the text, Mr. Justice Stone cites a large number of cases in which the Supreme Court has upheld state regulations materially affecting interstate commerce. In Maurer v. Boardman, 336 Pa. 17, 7 A.2d 466 (1939), aff’d sub nom. Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969 (1940), it was held that the highways in Pennsylvania are owned by the Commonwealth and that their preservation and the maintenance of safety on them are a concern of the state. It seems clear from the Acts of Congress and their accompanying legislative history, that grants-in-aid under the Federal Highway Program were and are designed to encourage states to construct their own highways and that the primary function of the Bureau of Public Roads, in approving plans submitted to it by a state and inspecting roads during and after construction, is that of making sure that federal appropriations are being utilized properly and efficiently by the respective states and are not being wasted. Funds appropriated by Congress for the highway program are apportioned to the states according to a statutory formula, 23 U.S.C. §§ 21, 21a, 21a-2. The states then create general programs to employ these funds and prepare estimates" }, { "docid": "17144779", "title": "", "text": "or in part, out of matters connected with intrastate commerce.” (Italics ours.) In the Minnesota Rate Cases, 230 U.S. 352, 399, 33 S.Ct. 729, 739, 57 L.Ed. 1511, 48 L.R.A.(N.S.) 1151, Ann.Cas.1916A, 18, the court further emphasized the power of Congress to regulate the affairs of interstate carriers with respect to matters affecting interstate commerce, notwithstanding the commingling of interstate and in trastate operations, saying: “The authority of Congress extends to every part of interstate commerce, and to every instrumentality or agency by which it is carried on; and the full control by Congress of the subjects committed to its regulation is not to be denied or thwarted by the commingling of interstate and intrastate operations. This is not to say that the nation may deal with the internal concerns of the state, as such, but that the execution by Congress of its constitutional power to regulate interstate commerce is not limited by the fact that jntrastate transactions may have become so interwoven therewith that the effective government of the former incidentally controls the latter. This conclusion necessarily results from the supremacy of the national power within its appointed sphere.” And in the Shreveport Case (Houston, E. & W. Texas Ry. Co. v. United States), 234 U.S. 342, 34 S.Ct. 833, 836, 58 L.Ed. 1341, the Supreme Court upheld an order of the Interstate Commerce Commission affecting intrastate rates, holding that Congress had power to regulate even the intrastate charges of a carrier when necessary to prevent interference with interstate commerce. The court said: “The fact that carriers are instruments of intrastate commerce, as well as of interstate commerce, does not derogate from the complete and paramount authority of Congress over the latter, or preclude the federal power from being exerted to prevent the intrastate operations of such carriers from being made a means of injury to that which has been confided to federal care. Wherever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the state, that is entitled to prescribe" }, { "docid": "23323281", "title": "", "text": "employee of the government while acting within the scope of his office or employment and under circumstances where the United States, if a private person, would be liable in accordance with the law of the place where the act or omission occurred, 28 U.S.C. § 1346(b). Our inquiry therefore must be directed toward ascertaining the intent of Congress in enacting the pertinent legislation. Our conclusions are aided greatly by the relevant legislative history. We state preliminarily that when legislating in respect to roads Congress acts under the authority conferred upon it by Article I, Section 8, of the Constitution to regulate interstate commerce, to establish post roads, and to provide by expenditure of tax revenues for the National Defense and the General Welfare. But it is clear nonetheless that the construction, maintenance and the regulation of highways have remained state functions. South Carolina State Highway Department v. Barnwell Bros., 303 U.S. 177, 187, 58 S.Ct. 510, 514, 82 L.Ed. 734 (1938). In the cited case Mr. Justice Stone said: \"From the beginning it has been recognized that a state can, if it sees fit, build and maintain its own highways, canals and railroads and that in the absence of Congressional action their regulation is peculiarly within its competence, even though interstate commerce is materially affected. Minnesota Rate Cases [Simpson v. Shepard], 230 U.S. 352, 416 [33 S.Ct. 729, 57 L.Ed. 1511]. Congress not acting, state regulation of intrastate carriers has been upheld regardless of its effect upon interstate commerce. Id. With respect to the extent and nature of the local interests to be protected and the unavoidable effect upon interstate and intrastate commerce alike, regulations of the use of the highways are akin to local regulation of rivers, harbors, piers and docks, quarantine regulations, and game laws, which, Congress not acting, have been sustained even though they materially interfere with interstate commerce.” 303 U.S. at 187-188, 58 S.Ct. at 515. In note 5 cited to the text, Mr. Justice Stone cites a large number of cases in which the Supreme Court has upheld state regulations materially affecting interstate commerce. In" } ]

[ { "docid": "22745208", "title": "", "text": "of trial dates, extensions of deadlines and deferments of scheduled discovery” that “were simply part of the sordid scheme of deliberate misuse of the judicial process ... to defeat NASCO’s claim by harassment, repeated and endless delay, mountainous expense and waste of financial resources.” Id., at 128. The intentional pretrial delays could have been sanctioned under Federal Rule of Civil Procedure 16(f), which enables courts to impose sanctions, including attorney’s fees, when a party or attorney “fails to participate in good faith” in certain pretrial proceedings; the multiple discovery abuses should have been redressed by “an appropriate sanction, . . . including a reasonable attorney’s fee,” under Federal Rule of Civil Procedure 26(g). The District Court also could have sanctioned Chambers and his attorneys for the various bad-faith affidavits they presented in their summary judgment motions, see 124 F. R. D., at 128, 136, under Federal Rule of Civil Procedure 56(g), a Rule that permits the award of expenses and attorney’s fees and the additional sanction of contempt. In addition, the District Court could have relied to a much greater extent on 18 U. S. C. §401 to punish the “contempt of its authority” and “[disobedience . . . to its . . . process” that petitioner and his counsel displayed throughout the proceedings. Finally, the District Court was too quick to dismiss reliance on 28 U. S. C. § 1927, which allows it to award costs and attorney’s fees against an “attorney . . . who . . . multiplies the proceedings in any case unreasonably and vexatiously.” The District Court refused to apply the provision because it did not reach petitioner’s conduct as a nonattorney. 124 F. R. D., at 138-139. While the District Court has discretion not to apply § 1927, it cannot disregard the statute in the face of attorney misconduct covered by that provision to rely instead on inherent powers which by definition can be invoked only when necessary. II When a District Court imposes sanctions so immense as here under a power so amorphous as inherent authority, it must ensure that its order is" } ]

[ { "docid": "22453976", "title": "", "text": "entitled to special deference.” Anheuser-Busch, 69 F.3d at 348(citation omitted). Issues of law underlying the district court’s denial of injunc-tive relief, including the determination that a party’s claims are not barred by res judicata, are reviewed de novo. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach (In re Am. Cont’l Corp./Lincoln Sav. & Loan Sec. Litig.), 102 F.3d 1524, 1535 (9th Cir.1996), rev’d on other grounds, 523 U.S. 26, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998). DISCUSSION I. The Dismissal Sanction There are two sources of authority under which a district court can sanction a party who has despoiled evidence: the inherent power of federal courts to levy sanctions in response to abusive litigation practices, and the availability of sanctions under Rule 37 against a party who “fails to obey an order to provide or permit discovery.” Fjelstad, 762 F.2d at 1337-38; Fed. R. Crv. P. 37(b)(2)(C). In this case, the district court relied on its “inherent authority” in sanctioning Leon because Leon’s conduct was not in violation of any discovery order governed by Rule 37. Dismissal is an available sanction when “a party has engaged deliberately in deceptive practices that undermine the integrity of judicial proceedings” because “courts have inherent power to dismiss an action when a party has willfully deceived the court and engaged in conduct utterly inconsistent with the orderly administration of justice.” Anheuser-Busch, 69 F.3d at 348(internal quotation marks and citations omitted). Before imposing the “harsh sanction” of dismissal, however, the district court should consider the following factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Id. While the district court need not make explicit findings regarding each of these factors, United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 603(9th Cir.1988), a finding of “willfulness, fault, or bad faith” is required for dismissal to be proper. Anheuser-Busch, 69 F.3d at 348" }, { "docid": "334053", "title": "", "text": "the tribunal and that the inherent power of a court to manage its affairs necessarily includes the authority to impose reasonable and appropriate sanctions upon errant lawyers practicing before it.” Blanchard v. EdgeMark Finan. Corp., 175 F.R.D. 293, 303 (N.D.Ill.1997) (internal citations and quotations omitted). In deciding the appropriate sanctions, “it is appropriate to consider the seriousness of the violations and whether the violations were intentional, as well as the nature and extent of the prejudice suffered or likely to be suffered by the parties in the future as a result of the violation.” In re Air Crash Disaster, 909 F.Supp. at 1124. Additionally, “[i]n determining the proper sanction or remedy, the court must consider the client’s right to be represented by the counsel of his choice, as well as, the opposing party’s right to prepare and try its case without prejudice.” Faison v. Thornton, 863 F.Supp. 1204, 1215 (D.Nev.1993). Courts also consider the prejudice to the judicial system and the potential for punishment and deterrence when assessing sanctions. Quela v. Payco-Gen. Am. Credits, Inc., No. 99 C 1904, 2000 WL 656681, *8 (N.D.Ill. Mar. 26, 2000). We are not limited, however, by the sanctions suggested by the plaintiff. Quela, 2000 WL 656681, at *5. Courts have employed a variety of sanctions to address a no-contact violation. For example, “[cjourts have elected to exclude from use at trial the evidence and information obtained during an improper ex parte communication until the excluded evidence is later obtained through properly conducted discovery .... Still other courts have elected to disqualify the party’s counsel who improperly engaged in ex parte communications with the represented party.” ABA Lawyer’s Deskbook on Prof. Resp., § 32-2.3; Blanchard, 175 F.R.D. at 303. Dismissal or the entry of a default judgment against the offending party is also an option. Weibrecht, 241 F.3d at 883. But such a sanction “should usually be employed only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing.” Id. (internal citation and quotation omitted); see also Quela, 2000 WL 656681," }, { "docid": "12066617", "title": "", "text": "she did not have a full 14 days to respond before the court ruled. Finally, Collins argues that the court was biased and failed to afford her the leniency normally provided to a pro se litigant. Although dismissal is a harsh penalty, we review all discovery sanctions for abuse of discretion and will uphold a district court’s decision so long as it could be considered reasonable. In re Thomas Consol. Indus., Inc., 456 F.3d 719, 724 (7th Cir.2006); Maynard v. Nygren,, 332 F.3d 462, 467 (7th Cir.2003). Rule 37(d) authorizes dismissal as a sanction for a party’s failure to appear for a deposition after being served with proper notice. See Fed. R.CivP. 37(d)(Z)(A)(i); 37(b)(2)(A)(v). We note that the standard cited by Collins, that an action may be dismissed only when there is a “clear record of delay or contumacious conduct, or prior failed sanctions,” applies when a lawsuit is dismissed for want of prosecution or failure to comply with- orders of the court. See Maynard, 332 F.3d at 467. But that is not what happened here, and to dismiss a case as a sanction for discovery abuse the court must only find that the party’s actions displayed willfulness, bad faith, or fault. In re Thomas Consol. Indus., Inc., 456 F.3d at 724; Maynard, 332 F.3d at 468. Once the court makes such a finding, the sanction imposed must be proportionate to the circumstances. Maynard v. Nygren, 372 F.3d 890, 892-93 (7th Cir.2004); Melendez v. Ill. Bell Tel. Co., 79 F.3d 661, 672 (7th Cir.1996). The district court’s choice of dismissal was reasonable given Collins’s willful refusal to be deposed. The court made an explicit finding that Collins’s conduct was willful in that she refused to wait until the magistrate judge could be contacted to address her objections, and she gave no legitimate reason for walking out of her deposition. These findings are supported by clear and convincing evidence. See Negrete v. Nat’l R.R. Passenger Corp., 547 F.3d 721, 724 n. 1 (7th Cir.2008). Collins was told that the defendants were entitled to attend the deposition, and her later objections regarding" }, { "docid": "6269177", "title": "", "text": "whose attorney then lies to the court under oath in attempting to set aside a sanction imposed for contempt of the court. When Hairston ignored the show cause order, Rule 45(e) expressly authorized the court to find him in contempt for disobeying the subpoena. As Hairston was a party, at a minimum the court could impose as a civil contempt remedy the sanctions authorized in Rule 37(b)(2)(A)-(C) plus the assessment of Alert’s reasonable expenses and attorneys’ fees in pursuing this discovery. See Daval Steel Prods, v. M/V Fakredine, 951 F.2d 1357, 1364-65 (2d Cir.1991). Dismissal with prejudice, though authorized by Rule 37(b)(2)(C), is of course a more punitive sanction and therefore may trigger the closer scrutiny reserved for criminal contempt remedies, including the right to immediate appeal. See Marrese v. Am. Acad. of Orthopaedic Surgeons, 706 F.2d 1488, 1493 (7th Cir.1983). Thus, I do not criticize plaintiffs for challenging the severity of this sanction by moving the district court to set aside its August 16 dismissal order. But then in challenging the dismissal order, plaintiffs lied to the court in an attorney affidavit addressing a highly relevant fact. There can be no doubt that dismissal is an authorized sanction for a party whose attorney has undermined the integrity of the judicial process by lying to the court. See Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir.1983) (“courts have inherent power to dismiss an action when a party has willfully deceived the court and engaged in conduct utterly inconsistent with the orderly administration of justice”); see generally Chambers v. NASCO, 501 U.S. 32, 44-45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (noting that contempt and dismissal are sanctions within district courts’ inherent authority to enforce their orders). Thus, the district court’s reasons for denying the motion to set aside its prior dismissal order fully justified the severe sanction that was thereby upheld. When dealing with violations of Rule 37 discovery orders, we give the district courts “a large measure of discretion in deciding what sanctions are appropriate for misconduct.” Hutchins v. A.G. Edwards & Sons, Inc., 116" }, { "docid": "334054", "title": "", "text": "No. 99 C 1904, 2000 WL 656681, *8 (N.D.Ill. Mar. 26, 2000). We are not limited, however, by the sanctions suggested by the plaintiff. Quela, 2000 WL 656681, at *5. Courts have employed a variety of sanctions to address a no-contact violation. For example, “[cjourts have elected to exclude from use at trial the evidence and information obtained during an improper ex parte communication until the excluded evidence is later obtained through properly conducted discovery .... Still other courts have elected to disqualify the party’s counsel who improperly engaged in ex parte communications with the represented party.” ABA Lawyer’s Deskbook on Prof. Resp., § 32-2.3; Blanchard, 175 F.R.D. at 303. Dismissal or the entry of a default judgment against the offending party is also an option. Weibrecht, 241 F.3d at 883. But such a sanction “should usually be employed only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing.” Id. (internal citation and quotation omitted); see also Quela, 2000 WL 656681, at *8 (in ordering default judgment against party that coerced an employee to lie in her deposition about issues central to the case, court notes that sanctions must “be proportionate to the circumstances surrounding the failure to comply with discovery”) (internal citation omitted). In this case, Plaintiffs seek a default judgment against Defendant. Short of that, they seek: (1) an order barring the use of testimony elicited at Gena’s deposition; (2) an order barring Defendant from taking any depositions in this matter; (3) reimbursement of Plaintiffs’ counsel’s fees accrued in presenting this motion ; and (4) monetary sanctions to deter Pepsi from engaging in such conduct in the future. As an initial matter, we do not believe that entering a default judgment against Defendant is the appropriate sanction in this case. Plaintiffs primarily rely on our decision in Quela in support of their request, but we believe that Quela is distinguishable from the instant case. In that case, the defendant intentionally coerced fraudulent written statements and false deposition testimony from an employee. Id. at *5." }, { "docid": "19261175", "title": "", "text": "merits; and (5) the availability of less drastic sanctions. Valley Engineers, Inc. v. Electric Engineering Co., 158 F.3d 1051, 1057 (9th Cir.1998). The third and fifth factors, prejudice and availability of less drastic sanctions, are the decisive factors. Id. (noting that factor numbers one and two favor, and number four cuts against, ease dispositive sanctions). 3. Inherent Authority of the Court The inherent power of the Court extends beyond those powers specifically created by statute or rule, and encompasses the power to sanction misconduct by the attorneys or parties before the Court. See, e.g. Chambers v. NASCO, Inc., 501 U.S. 32, 44-45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (holding that federal courts have the inherent power to “fashion an appropriate sanction for conduct which abuses the judicial process.”). Sanctions pursuant to a court’s inherent authority are appropriate upon a finding of “recklessness when combined with an additional factor such as frivolousness, harassment, or an improper purpose.” Fink v. Gomez, 239 F.3d 989, 994 (9th Cir.2001). Dismissal sanctions under a court’s inherent power may be imposed upon a finding of willfulness, fault or bad faith. See Leon v. IDX Systems Corp., 464 F.3d 951, 958 (9th Cir.2006). Before imposing dismissal sanctions, [a] district court must determine (1) the existence of certain extraordinary circumstances, (2) the presence of willfulness, bad faith, or fault by the offending party, (3) the efficacy of lesser sanctions, (4) the relationship or nexus between the misconduct drawing the dismissal sanction and the matters in controversy in the case, and finally, as optional considerations where appropriate, (5) the prejudice to the party victim of the misconduct, and (6) the government interests at stake. Halaco Eng’g Co. v. Costle, 843 F.2d 376, 380 (9th Cir.1988). Dismissal is only warranted in “extreme circumstances” and “to insure the orderly administration of justice and the integrity of the court’s orders.” Id. Courts may only impose terminating sanctions when no lesser sanction is adequate to cure the prejudice from the offending conduct. In re Napster, Inc. Copyright Litigation, 462 F.Supp.2d 1060, 1072 (N.D.Cal.2006). B. Destruction of Documents This lawsuit involves an allegation" }, { "docid": "13802462", "title": "", "text": "the privilege of maintaining this lawsuit. Coercing or seeking to obtain or manufacture false testimony “strikes at the heart of the judicial system. Lying cannot be condoned in any formal proceeding____ Our legal system is dependent on the willingness of the litigants to allow an honest and true airing of the real facts.” Quela v. Payco-General Am. Credits, Inc., 82 Fair Empl. Prac. Cas. (BNA) 1878, 2000 WL 799750 (N.D.I11.2000), available at No. 99 C 1904, 2000 WL 799750, 2000 U.S. Dist. LEXIS 6932, *20. Plaintiff has sought to undermine that purpose. A contempt citation under these circumstances would not preserve the integrity of the judicial process. The alternative, to initiate a criminal contempt proceeding, would neither address the many ways in which Ms. Young has frustrated the ability of the defendant to defend itself nor at this late date set the case back on track for trial or disposition. III. CONCLUSION Clear and convincing evidence has been presented that plaintiff willfully obstructed the discovery process and violated this Court’s discovery orders and therefore is subject to sanctions pursuant to the Federal Rules of Civil Procedure. In addition, clear and convincing evidence has been presented that plaintiff attempted to influence the testimony of two witnesses in bad faith. She therefore is subject to the ultimate sanction, dismissal, pursuant to the Court’s inherent power. Because defendant has been so prejudiced by plaintiffs misconduct that it would be unfair to require defendant to proceed further, and because plaintiffs misconduct has so jeopardized the integrity of the judicial process itself, any sanction short of dismissal would be inadequate to deal with plaintiffs misconduct. The Court therefore grants defendant’s motion to dismiss. An Order consistent with this Opinion will issue this same day. SO ORDERED. ORDER For the reasons stated in the Opinion issued this same day, it is hereby ORDERED that defendant’s motion to dismiss as a sanction for plaintiffs abuse of the litigation process is GRANTED; it is FURTHER ORDERED that this case is DISMISSED and shall be removed from the docket of this Court; and it is FURTHER ORDERED that this" }, { "docid": "6269178", "title": "", "text": "lied to the court in an attorney affidavit addressing a highly relevant fact. There can be no doubt that dismissal is an authorized sanction for a party whose attorney has undermined the integrity of the judicial process by lying to the court. See Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir.1983) (“courts have inherent power to dismiss an action when a party has willfully deceived the court and engaged in conduct utterly inconsistent with the orderly administration of justice”); see generally Chambers v. NASCO, 501 U.S. 32, 44-45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (noting that contempt and dismissal are sanctions within district courts’ inherent authority to enforce their orders). Thus, the district court’s reasons for denying the motion to set aside its prior dismissal order fully justified the severe sanction that was thereby upheld. When dealing with violations of Rule 37 discovery orders, we give the district courts “a large measure of discretion in deciding what sanctions are appropriate for misconduct.” Hutchins v. A.G. Edwards & Sons, Inc., 116 F.3d 1256, 1260 (8th Cir.1997) (quotation omitted). We should be equally deferential to a district court’s determination of what sanction is appropriate to protect the integrity of the judicial process when a party or his attorney has abused the discovery process, been found in contempt of court, and then lied to the court under oath. See Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642-43, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); Chrysler Corp. v. Carey, 186 F.3d 1016, 1021-22 (8th Cir.1999). The court faults the district court for failing to make an explicit finding that plaintiffs’ misconduct was willful and in bad faith. “When the facts show willfulness and bad faith,” we will uphold a Rule 37(b)(2) dismissal sanction despite the lack of an explicit finding of bad faith. Avionic Co. v. Gen. Dynamics Corp., 957 F.2d 555, 558 (8th Cir.1992); see Everyday Learning Corp. v. Larson, 242 F.3d 815, 817-18 (8th Cir.2001). Here, when the attorney for a party previously found in contempt lied to the court under oath, an" }, { "docid": "20390232", "title": "", "text": "case. Based on the record before it, as well as the Magistrate’s intimate familiarity with the facts of this case, the Court finds no error in the decision not to award PHI monetary sanctions. CONCLUSION Because neither Sikorsky nor PHI have shown Judge Roby’s ruling to be “clearly erroneous or contrary to law,” IT IS ORDERED that Sikorsky’s Motion for Appeal/Review of the Magistrate Judge’s Decision on PHI’s Request for Sanctions (Rec.Doc.708) is hereby DENIED, and PHI’s Objections to the Magistrate Judge’s Decision (Rec.Doc.709) are hereby OVERRULED. . Cases from sister courts within this circuit recognize that bad-faith spoliation of evidence is behavior sanctionable under a federal court’s inherent authority. See, e.g., Ashton v. Knight Transp., Inc., 772 F.Supp.2d 772, 779 (N.D.Tex. 2011) (\"A federal court has the inherent power to sanction a party who has abused the judicial process. The spoliation of evidence is one such abuse.\") (internal citations omitted); Tieken v. Clearing Niagara, Inc., 1997 WL 88180 (N.D.Miss. Jan. 7, 1997) (noting that spoliation sanctions may be imposed pursuant to a district court's inherent authority). . In the immediately following sentence, the Magistrate's Order goes on to state: The Court’s own authority encompasses its \"inherent power to impose sanctions for abuse of the judicial system, including the failure to preserve or produce documents.” Barnhill v. United States, 11 F.3d 1360, 1367 (7th Cir. 1993) (stating that this power stems from a court’s authority to manage its own affairs). Here, PHI does not allege that Sikorsky violated any discovery order or other directive by the Court. Thus, their motions are properly stated pursuant to this Court's inherent powers, and not Rule 37. In order for this Court to impose sanctions under its inherent power, however, it must find bad faith — which is not required under Rule 37. Sample v. Miles, 239 Fed.Appx. 14, 21 n. 20 (5th Cir.2007). Rec. Doc. 706, pp. 11-12. . See Rec. Doc. 709, p. 1 (“PHI does not object to Judge Roby's decision to award an adverse inference and attorneys’ fees and costs as a sanction for Sikorsky’s spoliation----”). . It is true" }, { "docid": "334052", "title": "", "text": "obtain consent to proceed without them or to reschedule the deposition when counsel was available. And it makes no difference that this deposition was taken pursuant to the Lupo litigation and not Gena’s own. Many of Kuenstler’s questions touched specifically on Gena’s own lawsuit against Pepsi. Gena clearly was entitled to have his lawyer present when he was asked questions under oath that could later bind him as admissions. In short, we reject Kuenstler’s weak defense and will not hesitate to impose sanctions for his prior and ongoing behavior. Turning to the issue of sanctions, we have broad discretion to award Plaintiffs the relief they seek. Chambers v. NASCO, Inc., 501 U.S. 32, 44-45, 111 S.Ct. 2123, 115 L.Edüd 27 (1991); In Re Air Crash Disaster Near Roselawn, Ind., 909 F.Supp. 1116, 1124 (N.D.Ill.1995) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 399, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)). “It is well established that courts possess the inherent power to protect the orderly administration of justice and to preserve the dignity of the tribunal and that the inherent power of a court to manage its affairs necessarily includes the authority to impose reasonable and appropriate sanctions upon errant lawyers practicing before it.” Blanchard v. EdgeMark Finan. Corp., 175 F.R.D. 293, 303 (N.D.Ill.1997) (internal citations and quotations omitted). In deciding the appropriate sanctions, “it is appropriate to consider the seriousness of the violations and whether the violations were intentional, as well as the nature and extent of the prejudice suffered or likely to be suffered by the parties in the future as a result of the violation.” In re Air Crash Disaster, 909 F.Supp. at 1124. Additionally, “[i]n determining the proper sanction or remedy, the court must consider the client’s right to be represented by the counsel of his choice, as well as, the opposing party’s right to prepare and try its case without prejudice.” Faison v. Thornton, 863 F.Supp. 1204, 1215 (D.Nev.1993). Courts also consider the prejudice to the judicial system and the potential for punishment and deterrence when assessing sanctions. Quela v. Payco-Gen. Am. Credits, Inc.," }, { "docid": "12511969", "title": "", "text": "“would have been to put [him] to the expense of a trial.” The district court then determined that, in “fairness to” Tucker, sanctions were proper in the exercise of the court’s “inherent authority.” We review a district court’s imposition of sanctions under its inherent authority for an abuse of discretion. Chambers v. NASCO, Inc., 501 U.S. 32, 55, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); Cleveland Hair Clinic, Inc., v. Puig, 200 F.3d 1063, 1066 (7th Cir.2000). Sanctions imposed pursuant to the district court’s inherent power are appropriate where a party has willfully abused the judicial process or otherwise conducted litigation in bad faith. Salmeron v. Enter. Recovery Sys., Inc., 579 F.3d 787, 793 (7th Cir.2009); Maynard v. Nygren, 332 F.3d 462, 470-71 (7th Cir.2003); see also Runfola & Assoc., Inc. v. Spectrum Reporting II, Inc., 88 F.3d 368, 375 (6th Cir.1996); Gillette Foods Inc. v. Bayernwald-Fruchteverwertung, GmbH, 977 F.2d 809, 813-14 (3d Cir.1992) (prerequisite to a sanction under the inherent power is a finding of bad faith). Without a finding that Williams acted in bad faith or engaged in misconduct, the district court sanctioned him, seemingly, in the interest of “fairness.” This is precisely the sort of sanction that is outside the court’s inherent power and that we have cautioned against in the past. We have stated that a district court must exercise restraint and caution in exercising its inherent power. Schmude v. Sheahan, 420 F.3d 645, 650 (7th Cir.2005). And it is “not a grant of authority to do good, rectify shortcomings of the common law ... or undermine the American rule on the award of attorneys’ fees to the prevailing party in the absence of statute.” Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., Inc., 313 F.3d 385, 391 (7th Cir.2002) (citations omitted). Here, the district court did not articulate a valid basis on which to award attorney’s fees as a sanction; indeed, there is no evidence in the record to suggest that Williams’ failure to notify Tucker of his intention to file a supplemental motion for summary judgment was in bad faith, designed to obstruct the" }, { "docid": "22855834", "title": "", "text": "therefore need not address whether dismissal was appropriate under the alternate authority of Rule 37. 2. Before imposing the harsh sanction of dismissal, the district court must weigh several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Henry, 983 F.2d at 948 (citations omitted). For dismissal to be proper, the conduct to be sanctioned must be due to “ “willfulness, fault, or bad faith.’ ” Id. at 946 (quoting Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir.1985)). Due process concerns further require that there exist a relationship between the sanctioned party’s misconduct and the matters in controversy such that the transgression “threaten[s] to interfere with the rightful decision of the ease.” Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 591 (9th Cir.1983); see also Phoceene Sous-Marine, S.A v. U.S. Phosmarine, Inc., 682 F.2d 802, 806 (9th Cir.1982) (holding default entry violated due process where the sanctioned party’s deception was wholly unrelated to the merits of the controversy). In evaluating the propriety of dismissal, we consider all incidents of Beard-slee’s alleged misconduct. See Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1411 (9th Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1019, 112 L.Ed.2d 1100 (1991). It is well settled that dismissal is warranted where, as here, a party has engaged deliberately in deceptive practices that undermine the integrity of judicial proceedings: “courts have inherent power to dismiss an action when a party has willfully deceived the court and engaged in conduct utterly inconsistent with the orderly administration of justice.” Wyle, 709 F.2d at 589 (upholding dismissal of complaint pursuant to court’s inherent power where plaintiffs denials of material fact were knowingly false and plaintiff willfully failed to comply with discovery orders); see also Combs v. Rockwell Int’l Corp., 927 F.2d 486 (9th Cir.1991) (affirming dismissal under the court’s inherent power as appropriate sanction for falsifying a" }, { "docid": "869998", "title": "", "text": "or Bluestem on five occasions that diversity of citizenship existed — (1) in Letzer’s email, (2) in the Joint Preliminary Report and Discovery Plan, (3) in the Amended Complaint, and (4-5) in proposed amended complaints. The district court found that the B&F lawyers “failed completely to perform their professional duties to the Parties and the Court in this matter” and ordered B&F to pay Bluestem $582,385 in fees and costs. B&F appeals the sanctions order. We reverse the district court’s sanction. II. Standard of Review We review sanctions orders for an abuse of discretion. See Amlong & Amlong, P.A v. Denny’s, Inc., 500 F.3d 1230, 1237 (11th Cir. 2007). “An abuse of discretion occurs when the district court applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner ... or ignores or misunderstands the relevant evidence.” Sciarretta v. Lincoln Nat’l Life Ins., 778 F.3d 1205, 1212 (11th Cir. 2015) (internal quotation marks omitted). III. Inherent Power Sanctions Courts have the inherent power to police those appearing before them. Chambers v. NASCO, Inc., 501 U.S. 32, 46, 111 S.Ct. .2123, 2133, 115 L.Ed.2d 27 (1991). A court’s inherent power is “governed not by rule or statute but by the control necessarily vested in ' courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Id. at 43, 111 S.Ct. at 2132 (citing Link v. Wabash R.R., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962)). This power “must be exercised with restraint and discretion” and used “to fashion an appropriate sanction for conduct which abuses the judicial process.” Id. at 44-45, 111 S.Ct. at 2132-33. A court may exercise this power “to sanction the willful disobedience of a court order, and to sanction a party who has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Marx v. Gen. Revenue Corp., 568 U.S. 371, -, 133 S.Ct. 1166, 1175, 185 L.Ed.2d 242 (2013) (citing Chambers, 501 U.S. at 45-46, 111 S.Ct. at 2133-34). The dual purpose of this power is to vindicate judicial authority without resorting" }, { "docid": "21191966", "title": "", "text": "the motion, requiring repeated motion practice on the same issues over and over again. Plaintiffs then had to resort to the exceptional motion for a Rule 37/Integrity Hearing, which has involved 11 days of hearings, extensive legal briefing, and additional depositions of certain witnesses, all at huge expense to Plaintiffs. Therefore, pursuant to Rule 37(b)(2) and 37(c)(1), this Court will require Health Net forthwith to pay the Plaintiffs’ reasonable attorneys’ fees and expenses incurred in connection with the Rule 37/Integrity hearing and all briefing in connection therein as well as Plaintiffs’ motions brought to invoke discovery compliance after an Order of the Magistrate Judge or the Court had so ordered and Health Net had still not complied, as set forth in this Opinion. Should Plaintiffs choose to re-depose any of the witnesses whose documents were not completely searched or produced prior to their deposi tions in violation of Court Order, Defendants shall bear all costs and attorneys fees of such renewed depositions. This Court also has the authority, under its inherent powers, to impose a fine on parties who interfere with the efficient functioning of the Court. See In re Tutu Wells Contamination Litig., 120 F.3d 368, 385 (3d Cir.1997) (overruled on other grounds by Comuso v. Nat’l R.R. Passenger Corp., 267 F.3d 331, 338-339 (3d Cir.2001)) (finding that fines made payable to the court may be imposed to ensure that the parties do not interfere with the functioning of the court); Prosser v. Prosser, 186 F.3d 403, 407 (3d Cir.1999) (court may impose fine under its inherent power so long as court gives notice that it is considering sanctions under that power); In re Prudential Ins. Co. of Am. Sales Practices Litig., 169 F.R.D. 598, 617 (D.N.J.1997) (imposing $1 million fine payable to the Court that “recogniz[ed] the unnecessary consumption of the Court’s time and resources with regard to the issue of document destruction” and “inform[ed] Prudential and public of the gravity of repeated incidents of document destruction and the need of the Court to preserve and protect its jurisdiction and the integrity of the proceedings before it”); see" }, { "docid": "14924133", "title": "", "text": "applies to counsel. We note this is not some inexplicable gap in the rules unreasonably insulating counsel from personal responsibility in discovery. Counsel are subject to monetary sanctions for unjustified nondisclosures when they certify a discovery response as complete and correct at the time it is made, see Fed.R.Civ.P. 26(g)(1), (3), or (as relevant here with respect to Mr. Csajaghy) when they fail to comply with a court order for discovery, see Fed.R.Civ.P. 37(b)(2)(C). But defendants do not contend that either of these bases for sanctions applies to Mr. Pennington under the circumstances of this case. They do, however, argue that the sanction levied against him may be upheld on the basis of the district court’s inherent power, a point to which we turn next. B. Sanctioning Authority under District Court’s Inherent Power Defendants insist we may affirm the sanction against Mr. Pennington on the alternative basis that it was a proper exercise of the district court’s inherent power to sanction abuse of the judicial process, citing Resolution Trust Corp. v. Dabney, 73 F.3d 262, 267 (10th Cir.1995). In Dabney this court relied on an inherent-power rationale to affirm a sanction against counsel that was not authorized under the statute (28 U.S.C. § 1927) invoked by the district court. But, as later explained in Hutchinson v. Pfeil, 208 F.3d 1180, 1186 n. 9 (10th Cir.2000), this course was available only because the standard governing sanctions under the two sources of authority was the same. That is not the case here. A court’s inherent power gives it the authority to impose “a sanction for abuse of the judicial process, or, in other words, for bad faith conduct in litigation.” Farmer v. Banco Popular of N. Am., 791 F.3d 1246, 1256 (10th Cir.2015) (internal quotation marks omitted). The Supreme Court has described the “narrowly defined circumstances [in which] federal courts have inherent power to assess attorney’s fees against counsel” as involving actions taken “in bad faith, vexatiously, wantonly, or for oppressive reasons.” Chambers v. NASCO, Inc., 501 U.S. 32, 45-46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (internal quotation marks omitted). In" }, { "docid": "12511968", "title": "", "text": "available to Tucker; he could have brought a claim for conversion or replevin. See Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir.1993) (finding Illinois tort laws were adequate postdeprivation procedures); Greco v. Guss, 775 F.2d 161, 169 (7th Cir.1985) (holding that a state-law claim for conversion was an adequate postdeprivation remedy). What Tucker was entitled to, and got, was the right to seek relief against that seizure, and he had that by virtue of Illinois tort laws. We do not find a due process violation. C. Sanctions The district court entered sanctions against Williams, awarding Tucker attorney’s fees in the amount of $3,000 for the time Tucker’s attorney spent responding to Williams’ motion for leave to file a supplemental motion for summary judgment and the actual supplemental motion for summary judgment. In support of its sanction, the district court stated that Williams’ briefing on the post-seizure due process issue was “inadequate”; that litigation should not be “conducted piecemeal”; and that if the court did not grant Williams’ supplemental motion for summary judgment, the result “would have been to put [him] to the expense of a trial.” The district court then determined that, in “fairness to” Tucker, sanctions were proper in the exercise of the court’s “inherent authority.” We review a district court’s imposition of sanctions under its inherent authority for an abuse of discretion. Chambers v. NASCO, Inc., 501 U.S. 32, 55, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); Cleveland Hair Clinic, Inc., v. Puig, 200 F.3d 1063, 1066 (7th Cir.2000). Sanctions imposed pursuant to the district court’s inherent power are appropriate where a party has willfully abused the judicial process or otherwise conducted litigation in bad faith. Salmeron v. Enter. Recovery Sys., Inc., 579 F.3d 787, 793 (7th Cir.2009); Maynard v. Nygren, 332 F.3d 462, 470-71 (7th Cir.2003); see also Runfola & Assoc., Inc. v. Spectrum Reporting II, Inc., 88 F.3d 368, 375 (6th Cir.1996); Gillette Foods Inc. v. Bayernwald-Fruchteverwertung, GmbH, 977 F.2d 809, 813-14 (3d Cir.1992) (prerequisite to a sanction under the inherent power is a finding of bad faith). Without a finding that Williams acted in" }, { "docid": "19261174", "title": "", "text": "Combs, 285 F.3d 899, 905 (9th Cir.2002); Jorgensen v. Cassiday, 320 F.3d 906 (9th Cir.2003). Moreover, a party’s destruction of evidence qualifies as willful spoliation if the party has “some notice that the documents were potentially relevant to the litigation before they were destroyed.” Leon v. IDX Sys., Corp. 464 F.3d 951, 959 (9th Cir.2006), quoting United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir.2002) (other citations omitted.) Finally, “[b]elated compliance with discovery orders does not preclude the imposition of sanctions.” Id., quoting North American Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir.1986); see also G-K Properties v. Redevelopment Agency of City of San Jose, 577 F.2d 645, 647-48 (9th Cir.1978). The Ninth Circuit has developed a five part test to evaluate whether a dismissal sanction under Rule 37 is just: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the [party seeking sanctions]; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Valley Engineers, Inc. v. Electric Engineering Co., 158 F.3d 1051, 1057 (9th Cir.1998). The third and fifth factors, prejudice and availability of less drastic sanctions, are the decisive factors. Id. (noting that factor numbers one and two favor, and number four cuts against, ease dispositive sanctions). 3. Inherent Authority of the Court The inherent power of the Court extends beyond those powers specifically created by statute or rule, and encompasses the power to sanction misconduct by the attorneys or parties before the Court. See, e.g. Chambers v. NASCO, Inc., 501 U.S. 32, 44-45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (holding that federal courts have the inherent power to “fashion an appropriate sanction for conduct which abuses the judicial process.”). Sanctions pursuant to a court’s inherent authority are appropriate upon a finding of “recklessness when combined with an additional factor such as frivolousness, harassment, or an improper purpose.” Fink v. Gomez, 239 F.3d 989, 994 (9th Cir.2001). Dismissal sanctions under a court’s inherent power may be" }, { "docid": "13802461", "title": "", "text": "a further waste of court resources and time if the ease were permitted to proceed. The Court therefore concludes that such a sanction is not only inappropriate in view of the egregiousness of plaintiffs conduct, but would also “effectively dispose[ ] of the merits any way.” Webb v. District of Columbia, 146 F.3d at 972. 4. Civil Contempt Ordinarily civil contempt is used to compel compliance with an order of the court, although in some circumstances it may be used “to compensate the complainant for losses sustained through a fine payable to the complainant.” United States v. Waksberg, 112 F.3d 1225, 1226 (D.C.Cir.1997) (quoting United States v. U.S. Mine Workers of America, 330 U.S. 258, 303-04, 67 S.Ct. 677, 91 L.Ed. 884 (1947)); see Int’l Union, United Mine Workers v. Bagwell, 512 U.S. 821, 828, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). In this case, however, civil contempt would be as ineffective a sanction for plaintiffs misconduct as would a monetary sanction. Ms. Young has abused the litigation process so substantially that she has lost the privilege of maintaining this lawsuit. Coercing or seeking to obtain or manufacture false testimony “strikes at the heart of the judicial system. Lying cannot be condoned in any formal proceeding____ Our legal system is dependent on the willingness of the litigants to allow an honest and true airing of the real facts.” Quela v. Payco-General Am. Credits, Inc., 82 Fair Empl. Prac. Cas. (BNA) 1878, 2000 WL 799750 (N.D.I11.2000), available at No. 99 C 1904, 2000 WL 799750, 2000 U.S. Dist. LEXIS 6932, *20. Plaintiff has sought to undermine that purpose. A contempt citation under these circumstances would not preserve the integrity of the judicial process. The alternative, to initiate a criminal contempt proceeding, would neither address the many ways in which Ms. Young has frustrated the ability of the defendant to defend itself nor at this late date set the case back on track for trial or disposition. III. CONCLUSION Clear and convincing evidence has been presented that plaintiff willfully obstructed the discovery process and violated this Court’s discovery orders and therefore is" }, { "docid": "16294685", "title": "", "text": "remedial rationales underlying the doctrine”). The district court is vested with wide discretion in determining the appropriate sanction. Reilly v. NatWest Mkts. Group, Inc., 181 F.3d 253, 267 (2d Cir.1999). “The right to impose sanctions for spoliation arises from a court’s inherent power to control the judicial process and litigation, but the power is limited to that necessary to redress conduct which abuses the judicial process”. Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002). To secure spoliation sanctions based on the destruction or delayed production of evidence, a moving party must prove that: (1) the party having control over the evidence had an obligation to preserve or timely produce it; (2) the party that destroyed or failed to produce the evidence in a timely manner had a “culpable state of mind”; and (3) the missing evidence is “relevant” to the moving party’s claim or defense, “such that a reasonable trier of fact could find that it would support that claim or defense.” Id. If a party has an obligation to preserve evidence, the degree of the party’s culpability and the amount of prejudice caused by its actions will determine the severity of the sanctions to be imposed. Henkel Corp. v. Polyglass USA, Inc., 194 F.R.D. 454, 456 (E.D.N.Y.2000) (citations omitted). “[A] court should never impose spoliation sanctions of any sort unless there has been a showing — inferential or otherwise — that the movant has suffered prejudice.” Gen-On Mid-Atlantic, LLC v. Stone & Webster, Inc., 282 F.R.D. 346, 353 (S.D.N.Y.2012) (citing Orbit One Commc’ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 441 (S.D.N.Y.2010) (“[i]t is difficult to see why even a party who destroys information purposefully or is grossly negligent should be sanctioned where there has been no showing that the information was at least minimally relevant.”)). A. Obligation to preserve A party has a duty to preserve evidence when it has “notice that the evidence is relevant to litigation, or should have known that the evidence might be relevant to future litigation”. Fujitsu v. Fed. Exp. Corp., 247 F.3d 423, 426 (2d Cir.2001). The" }, { "docid": "16760616", "title": "", "text": "II. Analysis A. The Default Judgment A district court may order sanctions, including a default judgment, for misconduct either pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure, which authorizes a court to assess a sanction for violation of a discovery order, or pursuant to the court’s inherent power to “protect [its] integrity and prevent abuses of the judicial process.” Shepherd, 62 F.3d at 1474. In Shea v. Donohoe Construction Company, 795 F.2d 1071 (D.C.Cir.1986), we set forth three basic justifications that support the use of dismissal or default judgment as a sanction for misconduct. First, the court may decide that the errant party’s behavior has severely hampered the other party’s ability to present his case — in other words, that the other party “has been so prejudiced by the misconduct that it would be unfair to require him to proceed further in the case.” Id. at 1074. Second, the court may take account of the prejudice caused to the judicial system when the party’s misconduct has put “an intolerable burden on a district court by requiring the court to modify its own docket and operations in order to accommodate the delay.” Id. at 1076. And finally, the court may consider the need “to sanction conduct that is disrespectful to the court and to deter similar misconduct in the future.” Id. at 1077. A sanction imposed pursuant to any of these considerations must be based on findings supported by the record. Bonds v. District of Columbia, 93 F.3d 801, 809 (D.C.Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 2453, 138 L.Ed.2d 211 (1997). Although our review of a district court’s order of default under either source of authority looks only to whether an abuse of discretion has occurred, the review should be a thorough, not a cursory, one. See, e.g., Bonds, 93 F.3d at 808 (Rule 37(b)); Shepherd, 62 F.3d at 1475 (inherent power). We recognize the burdens and management responsibilities a heavy docket places on a district court, but we must be equally cognizant of the drastic nature of a default judgment, which deprives a party completely" } ]

[ { "docid": "22694060", "title": "", "text": "that the nature of any prior Wal-Mart response bore any relationship whatsoever to any future harassment. For the dissent, the mere occurrence of the future harassment is enough circumstantial evidence to draw an inference of the inadequacy of prior employer responses. Whether even the immediate firing of each harasser would have actually deterred future wrongdoers is purely speculative, and factually impossible if the future harassers did not know about those actions. Unless we hold employers strictly liable for failing to broadcast sensitive disciplinary matters to their entire workforces, we cannot predicate liability on this theory. In addition, if the dissent’s inference is properly drawn on this record, it would be so in every case involving multiple incidents of harassment, and employers would be hard pressed to prove the negative—that future harassers were not motivated by prior employer responses. We recognize the sensibility of taking measures to prevent sexual harassment in the first instance, although such measures are not mandatory. See 29 C.F.R. § 1604.11(f) (1997); Mentor, 477 U.S. at 73, 106 S.Ct. 2399; 3 Lex K. Larson, Employment Discrimination § 46.07[4][a] (2d ed.1997). The dissent’s test, however, would make employers insurers against future sexual harassment by coworkers after an initial employer response, regardless of the nature of the response taken. ■ This is liability without end. III. Intentional Infliction of Emotional Distress Claim Plaintiff argues that her emotional distress claim is not preempted by the Colorado Worker’s Compensation statute. The district court, however, rested its summary judgment ruling alternatively on the ground that Plaintiff came forward with insufficient evidence of vicarious liability. In her opening brief, Plaintiff makes only two assertions, without citation to authority or the record, that the doctrine of respondeat superior should not protect Wal-Mart. She also makes just one assertion, again without citation to authority or the record, that a question of fact remains on this issue. Arguments inadequately briefed in the opening brief are waived, see Fed. R.App. P. 28(a)(6); Coleman v. B-G Maintenance Mgmt. of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir.1997); United States v. Callwood, 66 F.3d 1110, 1115 n. 6 (10th" } ]

[ { "docid": "23311603", "title": "", "text": "self-direction, see Aplt. Opening Br. at 32 (\"[T]he deficiency is so clear in two skill areas of communication and academics, Petitioner will focus on those two areas.”), and his reply brief mentions health and safety and self-direction in only cursory fashion, see Aplt. Reply Br. at 12. Ordinarily we would consider any argument concerning limitations in health and safety and self-direction to be abandoned. See Fairchild v. Workman, 579 F.3d 1134, 1146 (10th Cir.2009) (finding that the State \"forfeited” an argument because it had “effectively abandoned the argument by failing to make it in its appellate brief'); Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.2007) (\"[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant's opening brief.”). If we were to entertain the argument, however, it would not warrant a different result. As with communication and academics, a rational trier of fact could conclude, based on the record before it, that Mr. Hooks did not have significant limitations in health and safety and self-direction. In that regard, as our discussion of the record reveals, there was evidence that Mr. Hooks lived independently, traveled to see his mother often, managed his money and paid his bills, accepted the responsibility of caring for his wife and child, pawned items for cash, and managed a prostitution ring. In addition, Mr. Hooks required the apartments he rented for prostitutes to be clean, 4 M.R. Tr. at 204 (Test, of Ms. Dinh), and his mother described him as a \"neat person” who kept his clothes and own house clean, 2 M.R. Tr. at 214 — 16 (Test, of Clara Hooks). There was also evidence that Mr. Hooks had worked as a laborer. 2 M.R. Tr. at 152 (Test, of Virginia Betts); id. at 182 (Test, of Clara Hooks); 3 M.R. Tr. at 168 (Test, of Dr. Gelbort); State’s Ex. 8 to M.R. at 15 (E. State Hosp. Med. Record Summ., dated 1982). . Throughout this opinion, we employ the abbreviation “[volume number] Trial Tr.” to refer to a particular volume of the three-volume transcript of the" }, { "docid": "14493276", "title": "", "text": "trafficking, [it] could be considered by the jury along with other evidence in arriving at a decision as to intent.” Basham, 268 F.3d at 1208 (emphasis added). On balance, considering the evidence in the light most favorable to the government, “any rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt.” Irvin, 656 F.3d at 1162. Thus, Mr. McGehee’s arguments must be rejected. C. Acceptance of Responsibility Mr. McGehee contends that the district court should have granted him a two-level reduction in his offense level for acceptance of responsibility under U.S.S.G § 3E1.1(a). At the outset, we note that Mr. McGehee has waived this argument. “We typically find waiver [as opposed to forfeiture] in cases where a party has invited the error that it now seeks to challenge, or where a party attempts to reassert an argument that it previously raised and abandoned below.” United States v. Zubia-Torres, 550 F.3d 1202, 1205 (10th Cir.2008) (emphasis added). “[W]aiver is accomplished by intent, [but] forfeiture comes about through neglect.” Id. (second alteration in original) (quoting United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir.2007)) (internal quotation marks omitted). Waiver, unlike forfeiture, requires a showing that a known right has been intentionally “relinquish[ed] or abandon[ed].” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)) (internal quotation marks omitted). “[A] party that has waived a right is not entitled to appellate relief.” United States v. Teague, 443 F.3d 1310, 1314 (10th Cir.2006). “Unlike waived theories, we will entertain forfeited theories on appeal, but we will reverse a district court’s judgment on the basis of a forfeited theory only if failing to do so would entrench a plainly erroneous result.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir.2011). In other words, where a defendant has forfeited an issue in the district court, in order to prevail in an appellate challenge regarding that issue, a defendant must make a sufficient showing of error under" }, { "docid": "23363055", "title": "", "text": "law generally requires. In his state post-conviction proceeding, he presented the claim and supported it with documentary evidence, including medical records. But as explained more fully below, the evidence he presented at this stage was far less specific and probative than evidence he later sought to present in federal court. He has not explained why he did not submit to the state court the best evidence which presumably would have been available to him — affidavits from a psychiatrist and psychologist who personally examined him. However, the State has not argued that Mr. Fairchild was less than diligent. See Wilson v. Sirmons (Wilson I), 536 F.3d 1064, 1079 (10th Cir.2008) (citing the State’s failure to claim a lack of diligence as a relevant factor), aff'd, Wilson II, 577 F.3d at 1300, 2009 WL 2623336, at *14. The State did challenge Mr. Fairchild’s diligence in its response to the district court. R., Vol. I, Doc. 27, at 102-04 (Resp. to Pet. for Writ of Habeas Corpus, filed Aug. 5, 2002). But it has effectively abandoned the argument by failing to make it in its appellate brief. See Allen, 568 F.3d at 1199 n. 3 (“We do not consider the issues raised by Allen in his original filing. By not including those issues in his supplemental brief, Allen has abandoned them.”); see also Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.2007) (“[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant’s opening brief.”); Artes-Roy v. City of Aspen, 31 F.3d 958, 960 n. 1 (10th Cir.1994) (holding that claims and arguments that are not “specifically addressfed]” on appeal are deemed to be abandoned). Therefore, we find that the State has forfeited reliance on Mr. Fairchild’s neglect in not submitting the doctors’ affidavits and will proceed as if Mr. Fairchild had been diligent in the presentation of his ineffective assistance claim. 4. Trial Counsel’s Ineffectiveness We finally reach the merits of Mr. Fair-child’s claim. We have “consistently held [that] in a capital case the attorney’s duty to investigate all possible lines of defense is" }, { "docid": "8461751", "title": "", "text": "plain error on appeal. He has therefore waived the laekof-specific-findings argument. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir.2011); McKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir.2010) (“[E]ven if Ms. McKissick’s duress arguments were merely forfeited before the district court, her failure to explain in her opening appellate brief why this is so and how they survive the plain error standard waives the arguments in this court.”). As for his challenge to the content of the occupational restriction, Mr. Rodebaugh may not have waived this challenge below. In his written objections to the PSR, he did not specifically object to the part of the condition prohibiting guiding and outfitting in any state. But he objected to the restriction on accompanying others in hunting and fishing. Because his outfitting and guiding business necessarily involves accompanying others in their hunting, this objection may have sufficiently preserved his argument against the occupational restriction itself. But I need not resolve this issue because I would vacate and remand for more specific findings without deciding whether the district court erred as to the content and scope of the occupational restriction. iii. The Government’s waiver or forfeiture The court may, however, consider Mr. Rodebaugh’s argument because the Government failed to argue in its brief that Mr. Rodebaugh did not preserve his lack-of-specific-fíndings challenge. In its brief, the Government failed to argue Mr. Rodebaugh had not objected below and had not argued plain error in his opening brief. The Government not only failed to argue forfeiture or waiver in its brief, it even addressed Mr. Rodebaugh’s lack-of-specific-findings argument on the merits under the abuse-of-discretion standard. By the end of briefing, therefore, the Government had clearly waived or forfeited any objection to Mr. Rodebaugh’s failure to preserve his lack-of-specific-findings argument. This is textbook waiver or forfeiture of the waiver. See Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir.2013); United States v. Heckenliable, 446 F.3d 1048, 1049 n. 3 (10th Cir.2006) (“Defendant concedes he did not challenge the validity of his plea before the district court. The Government, however, does not argue Defendant" }, { "docid": "8181273", "title": "", "text": "... [and] that [MCN] has preserved its overall claim that [the Excise Tax Statute] and the Complementary Act are invalid and unenforceable.” Aplt. Reply Br. at 12-13. MCN’s counsel repeated this contention at oral argument. Because MCN raises only these two issues on appeal — preemption and tribal self-government — we will consider only those issues. See United States v. Cooper, 654 F.3d 1104, 1128 (10th Cir.2011) (“It is well-settled that arguments inadequately briefed in the opening brief are waived.” (quotations omitted)); Bronson v. Swen sen, 500 F.3d 1099, 1104 (10th Cir.2007) (“[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant’s opening brief.”). Although MCN argues in its reply brief that it did not abandon any of its complaint’s six claims, this assertion without accompanying argument is not sufficient to preserve issues for review. See Phillips v. Calhoun, 956 F.2d 949, 954 (10th Cir.1992) (“Since Plaintiffs disaffirmation is not, in any event, followed by any argument on the merits of the claims involved, we deem them waived under the general rule that even issues designated for review are lost if they are not actually argued in the party’s brief.”). Thus, we consider the validity of the Excise Tax Statute, the Escrow Statute, and the Complementary Act based on preemption and infringement of tribal self-governance and do not address whether these statutes violate due process, equal protection, the Supremacy and Indian Commerce Clauses, or MCN’s right to be free from discrimination. III. JURISDICTION A. Eleventh Amendment Sovereign Immunity States enjoy sovereign immunity from suit under the Eleventh Amendment. See Va. Office for Prot & Advocacy v. Stewart, — U.S. -, 131 S.Ct. 1632, 1637, 179 L.Ed.2d 675 (2011); P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (“This withdrawal of jurisdiction effectively confers an immunity from suit. Thus, this Court has consistently held that an unconsenting state is immune from suits brought in federal courts by her own citizens as well as by citizens of another state.” (quotations omitted)). But" }, { "docid": "23311602", "title": "", "text": "assistance was relevant, he or the individual helping him wanted to clarify that fact. Under a second interpretation, Mr. Hooks had never received writing assistance, but upon discovering that his writing abilities might hurt his case for mental retardation, he attempted to portray himself as less capable. The latter interpretation is what the State argued to the jury. See 3. M.R. Tr. at 195-96 (cross-examination of Dr. Gelbort). Before us, Mr. Hooks argues that he had help writing the letters and points to evidence that was not before the OCCA. Limiting our review, as we must, to the record in the state-court proceedings, and in light of two plausible interpretations of the evidence, a rational trier of fact could have doubted Mr. Hooks's claim to have received assistance. . Before the district court, Mr. Hooks argued that he has adaptive behavioral limitations in four skill areas: communication, academics, health and safety, and self-direction. See Hooks Habeas II, 693 F.Supp.2d at 1295. His opening brief to this court makes no argument concerning health and safety and self-direction, see Aplt. Opening Br. at 32 (\"[T]he deficiency is so clear in two skill areas of communication and academics, Petitioner will focus on those two areas.”), and his reply brief mentions health and safety and self-direction in only cursory fashion, see Aplt. Reply Br. at 12. Ordinarily we would consider any argument concerning limitations in health and safety and self-direction to be abandoned. See Fairchild v. Workman, 579 F.3d 1134, 1146 (10th Cir.2009) (finding that the State \"forfeited” an argument because it had “effectively abandoned the argument by failing to make it in its appellate brief'); Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.2007) (\"[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant's opening brief.”). If we were to entertain the argument, however, it would not warrant a different result. As with communication and academics, a rational trier of fact could conclude, based on the record before it, that Mr. Hooks did not have significant limitations in health and safety and self-direction. In that" }, { "docid": "5001104", "title": "", "text": "‘[sjubject to the other provisions in this Agreement,’ ” including Section 4.7. Costco App. 220 (alternation in original) (quoting Costco App. 177). But even assuming we could characterize this single sentence as “argument,” Costco “failed to identify in its opening brief where it raised this argument before the district court.” Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc., 82 F.3d 1533, 1540 n.3 (10th Cir. 1996) (emphasis added) (declining to consider appellant’s argument where appellant failed to provide record citation in opening brief establishing it raised argument below); see also 10th Cir. R. 28.2(C)(2) (“For each issue raised on appeal, all briefs must cite the precise reference in. the record where the issue was raised and ruled on.”). Moreover, on appeal, Costco doesn’t merely argue that Sections 4.2 and 4.3 are subject to Section 4.7, as it (at least cursorily) suggested below. Instead, Costco argues on appeal that Sections 4.2, 4.3, and 4.4 are all subject to each other, and that all three sections are therefore “interdependent” and “stand or fall together.” Costco Aplt. Br. 35. Because the plaintiffs are correct that Costco (1) didn’t raise this specific argument below and (2) doesn’t attempt to establish plain error on appeal, we decline to consider this argument. See Schrock v. Wyeth, Inc., 727 F.3d 1273, 1284 (10th Cir. 2013) (explaining that forfeiture rule applies to new theory presented on appeal, even if that theory falls under same general category as argument presented below); Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (noting that failure to argue for plain error on appeal “surely marks the end of the road” for forfeited argument). Further, we reject the suggestion Costco did make below—i.e., that simply be cause Sections 4.2 and 4.3 are “[s]ubject to” Section 4.7 means that Costco can replace its obligations under Sections 4.2 and 4.3, as opposed to its obligations under Section 4.4, with more favorable terms. Costco App. 177. First, if this were the case, the parties would have had no reason to specifically refer to Section 4.4 in Section 4.7; Section 4.4 is, like Sections" }, { "docid": "16615195", "title": "", "text": "Fifth Amendment objection], other than directing the panel to take lunch recess. This is wholly insufficient.” (citation omitted)). However, Defendants’ challenge based on these allegations is presented for the first time on appeal; in other words, Defendants lodged no contemporaneous objections relating to either the substance or the timing of the Walker-related curative instruction. Accordingly, we review this challenge only for plain error. See, e.g., Fabiano, 169 F.3d at 1302. Contrary to Defendants’ suggestion, it is only in the face of clear or obvious error that would work a manifest injustice — which is the kind of error addressed by the plain-error standard, see, e.g., Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir.2011) (“[W]e will entertain forfeited theories on appeal, but we will reverse a district court’s judgment on the basis of a forfeited theory only if failing to do so would entrench a plainly erroneous result.”); id. at 1129 (discussing “applying the plain error/manifest injustice standard to newly raised legal theories”) — that the court has a duty to take corrective action “regardless of whether it was affirmatively requested ... by any party,” Aplts.’ Principal Br. at 50-51. We conclude that Defendants cannot even establish the first prong of the plain-error standard — viz., they cannot establish that the district court erred at all. Here, the court’s instruction was straightforward and provided a correct statement of the law: it properly instructed the jury that statements or objections made by a defendant while not testifying (i.e., Mr. Walker) were not evidence. Defendants have offered us no legal authority to substantiate their conclusory assertion that this instruction was (as a matter of law) “wholly insufficient,” Aplts.’ Principal Br. at 47, and we conclude that the jury was not misled regarding the governing law. Nor have Defendants directed us to anything in the record to bolster their equally conclusory — as well as speculative — suggestion that the court’s brief delay in providing the instruction (i.e., until after the lunch break) constituted an abuse of discretion and prejudiced them because it gave the jury “ample time to refine [its]" }, { "docid": "16615194", "title": "", "text": "waived claim or defense is one that a party has knowingly and intelligently relinquished” (quoting Wood v. Milyard, — U.S. -, 132 S.Ct. 1826, 1832 n. 4, 182 L.Ed.2d 733 (2012)) (internal quotation marks omitted)); see also id. (noting that “a party that has waived a right is not entitled to appellate relief’ (quoting United States v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir.2009)) (internal quotation marks omitted)). As for the second curative instruction relating to Mr. Walker’s purported invocation of Mr. Barnes’s Fifth Amendment rights, Defendants allege that the instruction was “cursory and wholly insufficient,” Aplts.’ Principal Br. at 47, and, by not instructing the jury immediately — that is, by delaying issuance of the curative instruction until after the jury took a lunch recess — the court “disregarded] its duty to minimize the obvious prejudice to the jury, so as to maintain as much of its impartiality as possible,” id.; see also id. at 50 (“[T]he Court declined to instruct the jury within the immediate aftermath of the injurious episode [of Mr. Walker’s Fifth Amendment objection], other than directing the panel to take lunch recess. This is wholly insufficient.” (citation omitted)). However, Defendants’ challenge based on these allegations is presented for the first time on appeal; in other words, Defendants lodged no contemporaneous objections relating to either the substance or the timing of the Walker-related curative instruction. Accordingly, we review this challenge only for plain error. See, e.g., Fabiano, 169 F.3d at 1302. Contrary to Defendants’ suggestion, it is only in the face of clear or obvious error that would work a manifest injustice — which is the kind of error addressed by the plain-error standard, see, e.g., Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir.2011) (“[W]e will entertain forfeited theories on appeal, but we will reverse a district court’s judgment on the basis of a forfeited theory only if failing to do so would entrench a plainly erroneous result.”); id. at 1129 (discussing “applying the plain error/manifest injustice standard to newly raised legal theories”) — that the court has a duty to take corrective" }, { "docid": "14493277", "title": "", "text": "(second alteration in original) (quoting United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir.2007)) (internal quotation marks omitted). Waiver, unlike forfeiture, requires a showing that a known right has been intentionally “relinquish[ed] or abandon[ed].” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)) (internal quotation marks omitted). “[A] party that has waived a right is not entitled to appellate relief.” United States v. Teague, 443 F.3d 1310, 1314 (10th Cir.2006). “Unlike waived theories, we will entertain forfeited theories on appeal, but we will reverse a district court’s judgment on the basis of a forfeited theory only if failing to do so would entrench a plainly erroneous result.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir.2011). In other words, where a defendant has forfeited an issue in the district court, in order to prevail in an appellate challenge regarding that issue, a defendant must make a sufficient showing of error under the plain-error standard. See, e.g., United States v. Vasquez-Alcarez, 647 F.3d 973, 976 (10th Cir.2011) (“If he has forfeited the stale conviction argument, we review the substantive reasonableness of his sentence only for plain error.”). Before sentencing, Mr. McGehee expressly indicated that he had no objections to the PSR. And the PSR recommended that he not be given an adjustment under the Guidelines for acceptance of responsibility. Subsequently, Mr. McGehee nevertheless argued in his sentencing memorandum — referencing § 3E1.1 — that he should receive a two-level reduction in his Guidelines offense level for his conduct during trial: [T]he defendant stipulated to evidence relating to Counts [One] and [Three]. For example, Mr. McGehee stipulated to the laboratory report regarding the cocaine base. The stipulation alleviated the government from calling a forensic chemist to testify at trial in regards to Count [One]. Mr. McGehee also stipulated to his prior felony and the interstate nexus of the firearm elements in Count [Three]. His stipulation again streamlined the trial and alleviated the government from producing a firearms expert." }, { "docid": "8181272", "title": "", "text": "(6) violate, as a parens patriae claim, MCN’s right of equal protection and right to be free from discrimination. The OTC, along with its commissioners, and the Attorney General filed two separate motions to dismiss. Both motions argued (1) lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) based on Eleventh Amendment immunity, and (2) failure to state a claim under Fed.R.Civ.P. 12(b)(6). The district court granted these motions, holding that it did not have subject matter jurisdiction and, in the alternative, that. MCN failed to state a claim. II. MCN’S CLAIMS ON APPEAL Although MCN’s complaint lists six claims, two core issues permeate the complaint: the challenged laws (1) are preempted by the Indian Trader Statutes, and (2) violate MCN’s right to tribal self-government. Instead of presenting a claim-by-claim analysis in its brief, MCN presents arguments addressing only these two issues and does not tie these arguments to its individual claims. MCN even explains that it essentially has only “one claim for procedural relief — a declaratory judgment (and injunctive relief to enforce that declaration) ... [and] that [MCN] has preserved its overall claim that [the Excise Tax Statute] and the Complementary Act are invalid and unenforceable.” Aplt. Reply Br. at 12-13. MCN’s counsel repeated this contention at oral argument. Because MCN raises only these two issues on appeal — preemption and tribal self-government — we will consider only those issues. See United States v. Cooper, 654 F.3d 1104, 1128 (10th Cir.2011) (“It is well-settled that arguments inadequately briefed in the opening brief are waived.” (quotations omitted)); Bronson v. Swen sen, 500 F.3d 1099, 1104 (10th Cir.2007) (“[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant’s opening brief.”). Although MCN argues in its reply brief that it did not abandon any of its complaint’s six claims, this assertion without accompanying argument is not sufficient to preserve issues for review. See Phillips v. Calhoun, 956 F.2d 949, 954 (10th Cir.1992) (“Since Plaintiffs disaffirmation is not, in any event, followed by any argument on the merits of the claims involved, we deem them" }, { "docid": "22507482", "title": "", "text": "hearsay objection but offers no explanation for why this was erroneous. As a result, Ozark has waived its argument that the documents were inadmissible hearsay, see SCO Grp., Inc. v. Novell, Inc., 578 F.3d 1201, 1226 (10th Cir. 2009) (\"An issue or argument insufficiently raised in a party's opening brief is deemed waived.\"), and we are unable to say that the district court abused its discretion by admitting them into evidence. E. Ozark Forfeited Its Constitutional Arguments For the first time on appeal, Ozark argues that the district court's order of a conservation easement violates the Due Process and Takings Clauses of the Fifth Amendment. As Ozark did not raise this theory before the district court, the theory was forfeited and our review of the district court's order is for plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011). But Ozark did not argue for plain error review in its brief, and \"the failure to argue for plain error and its application on appeal ... marks the end of the road for an argument for reversal not first presented to the district court.\" Id. at 1131. Consequently, we decline to consider Ozark's constitutional arguments. F. The District Court Did Not Abuse Its Discretion by Not Invoking the Primary Jurisdiction Doctrine We review a district court's decision to invoke the primary jurisdiction doctrine for abuse of discretion. TON Servs., Inc. v. Qwest Corp., 493 F.3d 1225, 1239 (10th Cir. 2007). The primary jurisdiction doctrine allows courts to stay proceedings or dismiss an action without prejudice when \"a decision by a court would threaten the uniformity of a regulatory scheme or require the court to confront issues of fact outside of its conventional experience\" so that the parties can \"seek a decision before the appropriate administrative agency.\" S. Utah Wilderness All. v. Bureau of Land Mgmt., 425 F.3d 735, 751 (10th Cir. 2005). Here, there are no threats to the uniformity of a regulatory scheme or issues outside the conventional experience of the courts. In fact, Section 505 of the CWA explicitly contemplates that district courts" }, { "docid": "23606941", "title": "", "text": "the district court in this case did not enter a separate final judgment as required by Federal Rule of Civil Procedure 58. This Rule requires that, subject to stated exceptions not including summary judgment, \"[ejvery judgment and amended judgment must be set out in a separate document.” Fed.R.Civ.P. 58(a). However, ”[i]f no question exists as to the finality of the district court’s decision, the absence of a Rule 58 judgment will not prohibit appellate review.” Burlington N. R.R. Co. v. Huddleston, 94 F.3d 1413, 1416 n. 3 (10th Cir.1996). Here, there is no question that the district court’s grant of summary judgment and remand of the remaining state-law claims constituted a final decision. . The defendants also challenge this Court’s jurisdiction with respect to the district court's August 18, 2008 order denying Ms. Koch's second motion to continue the discovery deadline. This apparently is based on Ms. Koch’s identification of this order in her notice of appeal. However, Ms. Koch does not raise the August 2008 order in her opening brief, and thus has waived any challenge to this order. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.2007) (\"[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant’s opening brief.”). We therefore deny this aspect of the defendants’ motion. . In her opening brief, Ms. Koch also argues that she has a malicious prosecution claim against Officer Beech. However, Ms. Koch did not assert this claim below. \"Absent extraordinary circumstances, we will not consider arguments raised for the first time on appeal.” Turner v. Pub. Serv. Co., 563 F.3d 1136, 1143 (10th Cir.2009). Ms. Koch points us to no extraordinary circumstances warranting consideration of this newly asserted claim on appeal, and therefore we do not consider it. . In his response brief, Officer Beech references other potential bases for his conclusion that Ms. Koch was committing obstruction. In particular, he cites Ms. Koch's statements to him that he should get off of her property and that he should talk to her attorney, which he equates with an attempt to send" }, { "docid": "23154989", "title": "", "text": "face of this difficulty, the affiants provided a meaningful and sufficient amount of detail. In sum, the affidavits provide significantly more detail than the search warrants regarding the crimes at issue and the nature of the items to be seized. Reading the affidavits in conjunction with the search warrants “enable[d] the searcher to reasonably ascertain and identify the things authorized to be seized.” Riccardi, 405 F.3d at 862 (quoting Leary, 846 at 600). In light of the complex nature of the activities being investigated here, we conclude that the warrants were sufficiently particular when read in conjunction with their supporting affidavits. C. Franks Hearing Mr. Cooper alternatively argues that the district court erred in failing to afford him an evidentiary hearing pursuant to Franks v. Delaware. His argument in support of this claim, in its entire ty, states: “Alternatively, the [district] court at least should have held a hearing pursuant to [Franks ], as the information before the court constituted a substantial preliminary showing that the agents knowingly, or with reckless disregard for the truth, made false statements in the affidavits.” Aplt. Opening Br. at 49 (citing Franks, 438 U.S. at 171-72, 98 S.Ct. 2674; United States v. Basham, 268 F.3d 1199, 1204 (10th Cir.2001)). As Mr. Cooper provides no other argument or authority in support of this claim, he has insufficiently raised it on appeal. It is well-settled that “[arguments inadequately briefed in the opening brief are waived.” Adler v. WalMart Stores, Inc., 144 F.3d 664, 679 (10th Cir.1998); see, e.g., Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.2007) (“[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant’s opening brief.”). We therefore conclude that Mr. Cooper has waived this argument on appeal. In any event, even if we were to conclude that Mr. Cooper had adequately presented his Franks argument on appeal, we would hold that his claim is without merit. We briefly address it here. A defendant is entitled to a Franks hearing if he “makes a substantial showing that the affidavit contains intentional or reckless false statements" }, { "docid": "22507481", "title": "", "text": "expert material, they have nothing to do with the admissibility of already-disclosed material. Mr. Benham states that he acquired the Enercon documents through an unopposed subpoena on August 19, 2012. If the documents contained attorney-expert communications, a Rule 26(b)(4)(C) objection would have been appropriate at that time. And had Ozark withdrawn its expert before the subpoena, a Rule 26(b)(4)(D) objection would also have been well founded. Nearly two years after disclosure, though, Rule 26(b)(4) provides no protection against admitting the documents as evidence at trial-even if Ozark no longer planned to call its expert as a witness. Cf. SEC v. Koenig, 557 F.3d 736, 744 (7th Cir. 2009) (\"Disclosure of the report ends the opportunity to invoke confidentiality.\"). Additionally, Ozark has waived its hearsay argument by inadequately briefing the issue. Federal Rule of Appellate Procedure 28(a)(8)(A) requires an argument to contain \"appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.\" Ozark's brief mentions that the district court admitted the documents over Ozark's hearsay objection but offers no explanation for why this was erroneous. As a result, Ozark has waived its argument that the documents were inadmissible hearsay, see SCO Grp., Inc. v. Novell, Inc., 578 F.3d 1201, 1226 (10th Cir. 2009) (\"An issue or argument insufficiently raised in a party's opening brief is deemed waived.\"), and we are unable to say that the district court abused its discretion by admitting them into evidence. E. Ozark Forfeited Its Constitutional Arguments For the first time on appeal, Ozark argues that the district court's order of a conservation easement violates the Due Process and Takings Clauses of the Fifth Amendment. As Ozark did not raise this theory before the district court, the theory was forfeited and our review of the district court's order is for plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011). But Ozark did not argue for plain error review in its brief, and \"the failure to argue for plain error and its application on appeal ... marks the end of" }, { "docid": "23154990", "title": "", "text": "made false statements in the affidavits.” Aplt. Opening Br. at 49 (citing Franks, 438 U.S. at 171-72, 98 S.Ct. 2674; United States v. Basham, 268 F.3d 1199, 1204 (10th Cir.2001)). As Mr. Cooper provides no other argument or authority in support of this claim, he has insufficiently raised it on appeal. It is well-settled that “[arguments inadequately briefed in the opening brief are waived.” Adler v. WalMart Stores, Inc., 144 F.3d 664, 679 (10th Cir.1998); see, e.g., Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.2007) (“[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant’s opening brief.”). We therefore conclude that Mr. Cooper has waived this argument on appeal. In any event, even if we were to conclude that Mr. Cooper had adequately presented his Franks argument on appeal, we would hold that his claim is without merit. We briefly address it here. A defendant is entitled to a Franks hearing if he “makes a substantial showing that the affidavit contains intentional or reckless false statements and if the affidavit, purged of its falsities, would not be sufficient to support a finding of probable cause.” United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir.1997) (citing Franks, 438 U.S. at 155-56, 98 S.Ct. 2674). “[T]he standards of deliberate falsehood and reckless disregard set forth in Franks apply to material omissions, as well as affirmative falsehoods.” Id. (quoting Stewart v. Donges, 915 F.2d 572, 582 (10th Cir.1990)) (internal quotation marks omitted). A defendant’s allegations must be accompanied by an offer of proof. United States v. Owens, 882 F.2d 1493, 1498 (10th Cir.1989). Defendants must “point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.” Id. (quoting Franks, 438 U.S. at 171, 98 S.Ct. 2674). “[T]his court has not adopted a standard of review [for the denial of a Franks hearing] but other Circuit Courts of Appeals apply either a" }, { "docid": "9060489", "title": "", "text": "that to the extent the CCA concluded he forfeited his right to counsel, that conclusion \"constitutes an unreasonable extension of clearly established law surrounding forfeiture of constitutional rights.\" Aplt. Br. 24. Indeed, Vreeland appears to concede as much: he acknowledges that the circumstances surrounding his prior waiver had at least some \"possible relevance\" because they \"demonstrate[d] that Vreeland had knowledge of the right to counsel and the consequences of waiving it.\" Aplt. Br. 20 n.4. It's not entirely clear whether § 2254(e)(1) 's presumption applies to our § 2254(d)(2) analysis. See Sharp v. Rohling , 793 F.3d 1216, 1228 n.10 (10th Cir. 2015) (\"The interplay between § 2254(d)(2) and § 2254(e)(1) is an open question.\"). Nevertheless, because Vreeland appears to concede it does, we need not resolve this \"open question.\" Id. Vreeland says the trial court \"unreasonably\" refused to listen to tape-recorded telephone conversations that, according to Vreeland, would have proved Scheideler created the conflict between the two men. Aplt. Br. 39. But Vreeland cites no authority for the proposition that the trial court's refusal to examine certain evidence-even if that refusal was unreasonable-satisfies § 2254(d)(2). Accordingly, we find any argument on this point waived and decline to consider it. See Fed. R. App. P. 28(a)(8)(A) (requiring argument section of appellant's opening brief to contain \"appellant's contentions and the reasons for them, with citations to the authorities ... on which the appellant relies\"); Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007) (explaining that we \"routinely ... decline[ ] to consider arguments that are ... inadequately presented[ ] in an appellant's opening brief\"). In a related argument, Vreeland asserts that he is entitled to an evidentiary hearing under § 2254(e)(1) to resolve who was to blame for his attorneys' decisions to withdraw. In support, he cites Milton v. Miller , 744 F.3d 660 (10th Cir. 2014). But in Milton , we remanded for an evidentiary hearing only after holding that the defendant satisfied § 2254(d)(1). See id. at 673. Because Vreeland hasn't made that showing here, an evidentiary hearing is unwarranted. For instance, Vreeland filed a pro se" }, { "docid": "22307139", "title": "", "text": "would violate the Suspension Clause to foreclose § 2241 as a potential avenue for relief. However, Mr. Abernathy failed to raise this argument before the district court — thus, forfeiting it, see Richison v. Ernest Group, Inc., 634 F.3d 1123, 1127-28 (10th Cir.2011) — and does not request on appeal that we review it for plain error. Thus, we could permissibly decline to consider the argument altogether. See id. at 1131 (“[T]he failure to argue for plain error and its application on appeal — surely marks the end of the road for an argument for reversal not first presented to the district court.”). Yet, the decision regarding what issues are appropriate to entertain on appeal in instances of lack of preservation is discretionary. See United States v. McGe-hee, 672 F.3d 860, 873 n. 5 (10th Cir.2012) (“[W]e are not obliged to apply forfeiture principles to [a party’s] briefing omission; such decisions are discretionary.”); cf. Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.”). In the instant case, certain factors militate in favor of considering Mr. Abernathy’s Suspension Clause argument, but only under the demanding plain-error standard. We elect to consider Mr. Abernathy’s Suspension Clause argument, at least in part, because the government neglected to raise his failure to preserve the argument in its briefing. Such an instance of neglect could function as a forfeiture of the opportunity to hold Mr. Abernathy to his failure to preserve his argument. See McGehee, 672 F.3d at 873 n. 5 (“[A] color-able argument could be advanced that we should overlook [the appellant’s] apparent failure to preserve his acceptance-of-responsibility argument because the government forfeited the right to object to it” by “not argu[ing] that [the appellant] failed to preserve this argument.”); cf. United States v. Heckenliable, 446 F.3d 1048, 1049 n. 3 (10th Cir.2006) (“Defendant concedes he did not challenge the validity" }, { "docid": "20172435", "title": "", "text": "this argument because it was essentially abandoned” in the district court. Aplt. Reply Br. at 13. Therefore, Mr. Kannady has waived this argument and we will not consider it on appeal. See Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155, 1174 (10th Cir.2005) (“The failure to raise an issue in an opening brief waives that issue.”). Finally, Mr. Kannady argues in his reply brief that he identified a substantive provision of the ADEA that the OPPRS was a scheme to evade by citing 29 U.S.C. § 623(a)(1) in his opening brief, which provides that an employer may not “fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” While Mr. Kannady did cite § 623(a)(1) in his opening brief, he failed to provide any analysis or reasoning whatsoever for the assertion he now makes. Indeed, even in his reply brief, Mr. Kannady did little more than assert in conclusory fashion that the OPPRS is a subterfuge to evade § 623(a)(1). Because Mr. Kannady has failed to adequately present his § 623(a)(1) argument in his opening brief, we decline to address it. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.2007) (“[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant’s opening brief.”). In order to carry his burden of proving subterfuge, Mr. Kannady needed to prove that Krebs was using the OPPRS to evade a non-hiring substantive provision of the ADEA. Since Mr. Kannady cannot identify this ADEA provision, he has failed to demonstrate that the OPPRS is a subterfuge to evade the purposes of the ADEA. III. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s order granting summary judgment in favor of Krebs. . Following Mr. Kannady's death in January 2007, this court granted a motion to substitute the personal representative of Mr. Kannady’s estate, Chris Kannady, as appellant pursuant to Fed. R.App. P. 43(a)(1). . Kiowa’s participation in this appeal is limited to the" }, { "docid": "8175562", "title": "", "text": "treats such threadbare arguments as waived. See, e.g., Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir.2011) (declining to address a procedural-due-process argument where, despite “mak[ing] a start at arguing” it in the opening brief, the \"argument section” of that brief did not go much further in \"chalIeng[ing] the [district] court’s reasoning” on the issue); Burrell v. Armijo, 603 F.3d 825, 835 (10th Cir.2010) (\"[0]n appeal, issues nominally raised but inadequately briefed need not be considered.” (citing United States v. Rumman, 54 F.3d 1522, 1534 (10th Cir. 1995))); United States v. Pursley, 577 F.3d 1204, 1231 n. 17 (10th Cir.2009) (“[A]lthough Mr. Pursley alluded to the ex parte issue in his appellate brief, that skeletal reference does not present a cognizable issue for appellate review.”); see also Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir.1998) (“Arguments inadequately briefed in the opening brief are waived....”). We discern no reason not to do likewise here. Furthermore, Mr. Lamirand did not raise this distinct argument in the district court. Where a new legal theory is raised for the first time on appeal, frequently we have deemed the theory to be waived. See, e.g., Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1158 (10th Cir.2011) (\"We normally do not address arguments not presented to the district court in the first instance.”); accord Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (\"It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.”). However, we have recognized that where the new theory was not \"intentionally relinquished or abandoned in the district court,” but rather “the theory simply wasn’t raised before the district court, we usually hold it forfeited” and review it \"under what substantively amounts to (and what we have more recently described as) the plain error standard.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011). \"Naturally, a litigant in [Mr. Lamirand’s] position would prefer to have us consider a previously unraised theory merely forfeited rather than waived,” id. at 1128, but" } ]

[ { "docid": "2121387", "title": "", "text": "insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury ... caused by an occurrence_ Definitions “Bodily injury” means bodily injury, sickness or disease sustained by any .person. “Occurrence” means an accident, including injurious exposure to conditions which results in bodily injury during the policy period neither expected nor intended from the standpoint of the insured. The “exposure theory” was first adopted by the Sixth Circuit in Insurance Co. of North America v. Forty-Eight Insulations, 633 F.2d 1212 (6th Cir.1980), clarified, 657 F.2d 814, cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981) as an interpretation of Illinois law. This theory was later adopted by the Fifth Circuit in Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981) and by the Eleventh Circuit in Commercial Union Insurance Co. v. Sepco Corp., 765 F.2d 1543 (11th Cir.1985). Under the exposure theory, coverage is based solely on the claimant’s period of exposure to asbestos. If the exposure occurs during the policy period of more than one carrier, the coverage and defense obligations are to be apportioned pro rata among the carriers on the risk during any period of exposure. Proponents of this theory contend that bodily injury takes place at or shortly after exposure to asbestos. The “manifestation theory” was adopted by the First Circuit in Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Co., 682 F.2d 12 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983). Under this theory, coverage and defense obligations are not triggered until the occurrence insured against has manifested itself in such manner as to be medically detectable and diagnosable. Proponents of this theory assert that a court must focus on the word “disease” rather than bodily injury. They contend that asbestos-related diseases are undiagnosable until an individual has recognizable symptoms, which may be as long as 20 to 40 years after exposure if exposure actually produces a disease. A third or hybrid theory was stated by the D.C." } ]

[ { "docid": "7595840", "title": "", "text": "is faced with an increasing rate of injured persons. At a certain point, the manufacturer will be unable to secure any insurance coverage. Thus, when some of the injured persons manifest their injury, there will be no insurance. Under the circumstances, it is probable that the California Supreme Court would find the reasoning and results of the Sixth Circuit in Forty-Eight Insulations to be correct. An insurer is liable for any period where there was an exposure to an injury causing agent. Admiral does not argue that it was not liable at all for Hancock’s insurance coverage. Rather Admiral argues that its coverage of Hancock should be prorated between itself and Mutual based on the district court’s finding that there was a continuous exposure. Admiral contends that the implantation of the contaminated valve merely began the continuing disease process. Admiral argues that each insurance company which provided coverage during the time that the valve was in Mr. Outlaw is liable. Admiral relies on Forty-Eight Insulations to support its argument for pro-ration. Admiral, however, misreads the case. First, Admiral argues that the district court erroneously adopted the exposure theory but then failed to carry it to its conclusion in apportioning liability as the Forty-Eight Insulations court did. However, that court found that only those insurance companies who were at risk at different times of exposure were liable. In other words each time the injured breathed asbestos, there was an exposure, and all insurance companies which had provided coverage at the time of an exposure were liable. Further, that court specifically noted that an insurer cannot be liable when no exposure takes place. Forty-Eight Insulations, 633 F.2d at 1225. In this case we have only one exposure, at the time of the implantation of the contaminated valve. Therefore, the reasoning of the district court was correct in holding that Admiral was completely liable as it was the only insurance company at risk at the time of the exposure. Accordingly, the district court’s judgment is affirmed. B. WHETHER THE AWARD OF ATTORNEYS’ FEES WAS REASONABLE. State law governs whether there should be an" }, { "docid": "7595839", "title": "", "text": "cumulative and progressive disease process. We find that the California Supreme Court would adopt the exposure theory to determine when bodily injury occurs. Insurance liability policies should be interpreted to promote coverage and to fulfill the dominant purpose of providing indemnification. The exposure theory provides coverage and enables the insurance companies to determine their liabilities. As in this case, it will not be difficult to determine when an injured person was exposed to the particular agent which caused the bodily injury. • We find that the California Supreme Court would not adopt the continuous exposure theory. The basis for the reasoning in Keene was a perceived difficulty in determining medically how or when the injury occurs in an asbestos inhalation. However, this seems to ignore the pragmatic concerns of a court. A court should have no difficulty in determining when an exposure to any injury causing agent occurred. This court finds that the California Supreme Court would reject the manifestation theory. Under the manifestation theory, coverage can become illusory when the manufacturer of a product is faced with an increasing rate of injured persons. At a certain point, the manufacturer will be unable to secure any insurance coverage. Thus, when some of the injured persons manifest their injury, there will be no insurance. Under the circumstances, it is probable that the California Supreme Court would find the reasoning and results of the Sixth Circuit in Forty-Eight Insulations to be correct. An insurer is liable for any period where there was an exposure to an injury causing agent. Admiral does not argue that it was not liable at all for Hancock’s insurance coverage. Rather Admiral argues that its coverage of Hancock should be prorated between itself and Mutual based on the district court’s finding that there was a continuous exposure. Admiral contends that the implantation of the contaminated valve merely began the continuing disease process. Admiral argues that each insurance company which provided coverage during the time that the valve was in Mr. Outlaw is liable. Admiral relies on Forty-Eight Insulations to support its argument for pro-ration. Admiral, however, misreads the" }, { "docid": "23196169", "title": "", "text": "all sums which the insured is obligated to pay as damages because of bodily injury caused by an occurrence. “Bodily injury” is defined in each policy to include “bodily injury, sickness or disease.” “Occurrence” is defined in each policy to mean an accident or event or a continuous or repeated exposure to conditions which causes or results in bodily injury. The only distinguishable variation found among the policies’ use of these terms is the placement of the phrase “during the policy period.” In the Aetna and Hartford # 1 policies this phrase is placed in the definition of “occurrence.” In the Hartford # 2 and Continental policies this phrase is placed in the definition of “bodily injury.” In analyzing the provisions of the policies involved, the District Court stated: In the instant case each of the three defendant insurers has a policy limiting coverage to “occurrences” taking place during the policy period. The Court further equated “bodily injury” with “sickness or disease”. Based upon this rationale, the Court held that Aetna was not liable because Porter did not sustain bodily injury as the result of an occurrence during Aetna’s policy period since the sickness or disease did not manifest itself during Aetna’s policy. The Court also held that Continental was not liable because the “occurrence”, i. e., exposure to asbestos dust, occurred prior to its policy coverage. Hartford was held liable because exposure occurred and bodily injury manifested itself during its policy period. Since the District Court decided this case the Sixth Circuit has decided Insurance Company of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (1980). That Court rejected the “manifestation” theory of insurance coverage in asbestosis cases and accepted the “injurious exposure” theory. It held that the insurance coverage (liability) should be prorated among all the carriers as to liability for cumulative, progressive lung disease as a result of exposure to asbestos products, except that an insurer would not be liable for any period where there was no exposure to asbestos manufactured by the insured. We might prolong this already lengthy opinion by paraphrasing or rephrasing the" }, { "docid": "22073327", "title": "", "text": "of ... bodily injury or ... property damage to which this policy applies caused by an occurrence. “Bodily injury” means bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom. “Occurrence” means an accident, including injurious exposure to conditions which results, during the policy period, in bodily injury. . . . The above-cited policy language causes little difficulty in the ordinary case. Asbestosis, however, presents thorny problems since it does not clearly fit within the above language. A worker who contracts asbestosis and sues Forty-Eight and/or other asbestos manufacturers must establish liability and injury in order to win a judgment. If the worker succeeds in his suit and Forty-Eight is directed to pay, then it is clear that the above-cited insurance coverage is triggered. But which insurance company has to pay the judgment? At first glance, it would appear that the insurance company which provides coverage when asbestosis is diagnosed should pay. However, asbestosis is a slowly progressive, insidious disease. As more and more asbestos particles settle in the lungs over years of exposure, the disease worsens. At some point, asbestosis interferes with gas exchange in the lungs and clearly manifests itself. It is thus arguable that a worker’s asbestosis “occurred” during the many years that the worker was breathing in tiny asbestos particles and accumulating them in his lungs. This case principally concerns a dispute among Forty-Eight’s different insurance carriers over the years as to which carrier or carriers is liable under the above-cited policy provisions. IN A filed this diversity action in the district court, seeking a declaratory judgment on this issue. I. We are called upon in this case to construe uniform provisions in widely-used Comprehensive General Liability (CGL) insurance policies. We are presented with two different theories of construction. INA, Affiliated FM, Illinois National and Liberty Mutual, supported by several amici curiae, advocate the manifestation theory of liability. Under this theory, bodily injury in a case of asbestosis could not be deemed to have occurred until the asbestosis manifests itself. The date of manifestation" }, { "docid": "5703263", "title": "", "text": "as the disease develops; or (c) the time at which bodily function begins to be impaired. They claim that the manifestation theory provides the only certain method of establishing coverage and advocate its adoption as a “rule of reason.” See, General Dynamics Corp. v. Benefits Review Board, et al., 565 F.2d 208 (2d Cir. 1977). Forty-Eight and Travelers, on the other hand, contend that manifestation is unrelated to injury. They maintain that these liability policies are “occurrence” or “accident” policies, not “discovery” or “claims made” policies. It is their position that I would drastically reform the terms of the relevant insurance contracts if I adopt the manifestation theory. They point out that the uncontroverted medical evidence indicates that tissue damage occurs shortly after inhalation and as far back as 50 years before manifestation. They cite medical evidence to show that asbestos-caused diseases involve cumulative minute injuries and are progressive. They characterize this chain of events as a “continuing tort” and claim that this makes all insurers on the risk from the time of alleged initial exposure through manifestation jointly and severally obligated to defend and to indemnify Forty-Eight if liability is found. Following the decision in Borel, supra, holding all manufacturers of asbestos products to which a claimant was exposed jointly and severally liable, some insurers began to espouse the manifestation theory for coverage determination while others continued to advocate the exposure theory. Discussions and meetings have heightened the controversy and its continued existence is demonstrated by the fact that there are insurers on both sides of the issue in this declaratory judgment action. Forty-Eight has introduced numerous items of correspondence and other documents to show that even within certain insurance compa nies’ practices and positions relative to this coverage controversy have changed over time. In the three years prior to INA’s letter of June 27, 1977, Forty-Eight tendered the defense of approximately 150 lawsuits to INA and the other carriers involved in this action. In every instance a defense was provided — usually by INA — without a reservation of rights raising the point that manifestation of the disease" }, { "docid": "16590480", "title": "", "text": "the cumulative disease situation which asbestosis presents. We cannot agree. Cumulative disease cases are different from the ordinary accident or disease situation. First, the underlying theory of tort liability is that the asbestos manufacturers continually failed to warn the asbestos workers and that, as a result of this, continuous breathing of asbestos particles allowed asbestosis to progress to the point where it caused death or injury. The insurance policies before us are comprehensive general liability policies which are designed to insure the manufacturer against products liability suits. The contracting parties expect coverage to parallel the theory of liability. Otherwise . . . the manufacturer’s coverage becomes illusory since the manufacturer will likely be unable to secure any insurance coverage in later years when the disease manifests itself. Second, a question might exist as to whether the microscopic tissue injury which occurs upon initial inhalation of asbestos should be defined as the occurrence of a “disease” or “bodily injury”. However, there is universal medical agreement that the time when asbestosis manifests itself is not the time when the disease occurred. No doctor would say that asbestosis occurred when it was discovered. Id., 633 F.2d at 1219. The cases relied upon by the proponents of manifestation are inapposite because they are primarily statute of limitations cases, workers’ compensation cases and health insurance cases. See, Tijsseling v. Gen. Ace. Fire & Life Assurance Corp., Ltd., 55 Cal.App.3d 623, 127 Cal.Rptr. 681; Met. Life Ins. Co. v. Reynolds, 48 Ariz. 205, 60 P.2d 1070 (1936); Travelers Ins. Co. v. Cardillo, 225 F.2d 137 (2nd Cir. 1955) cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955) (“Last employer” or “last exposure” rule). These distinctions have been dealt with in detail by Judge Keith, INA v. Forty-Eight Insulations, supra, 633 F.2d at 1220-1222. Further support for the exposure theory comes from Tenneco Chemicals v. Employers Mutual Liability Ins. Co., 76 Civ. 809 (S.D.N.Y.) (April 8, 1977). In Tenneco, plaintiff was injected with a radioactive drug for testing purposes. The drug broke down improperly and plaintiff suffered from radiation exposure for a long period" }, { "docid": "5703267", "title": "", "text": "persons who are exposed experience tissue damage; it is clear that, when a lawsuit is brought by a person who alleges an asbestos-caused lung disease, there is a strong likelihood that proof is available as to inhalation and tissue change. Each minute injury may then be a part of a “continuing tort,” Karjala v. Johns-Manville, 523 F.2d 155 (8th Cir. 1975), and may constitute a separate occurrence. Consequently, each insurer on the risk when a currently diseased plaintiff was allegedly exposed is obligated to acknowledge coverage and to provide a defense and possibly indemnification. To obtain a judgment against Forty-Eight, a plaintiff in an underlying lawsuit must show exposure to Forty-Eight’s asbestos products. A similar showing must be made in the underlying lawsuit as to other defendant asbestos manufacturers who, it is claimed, are involved. Having shown such exposure to the products of asbestos manufacturers and the existence of disease, such a plaintiff has made out a prima facie case of injury. Such a plaintiff’s inability to fix the exact time when each injury occurred does not preclude liability in a case where such injuries are cumulative and progressive, and cannot be apportioned between given points or periods of time. Borel, supra, at 1094. By analogy, each insurer of each manufacturer has coverage for the injuries allegedly caused by that manufacturer. By being on the risk during an indivisible injurious process, each insurer is rendered jointly and severally liable to defend and indemnify its insured. Any other theory of coverage would render Forty-Eight’s insurance illusory. Under Borel and similar cases Forty-Eight may be held liable for asbestos-caused injuries occurring during the period from 1923 until 1970 when it discontinued the sale of asbestos products. If the manifestation theory is adopted, Forty-Eight would be effectively deprived of coverage it paid for and might be unable to secure coverage for liability in future cases where manifestation occurs after coverage is not available. Joint and several liability of the insurers who insured Forty-Eight at various times during the injury producing process (which I equate with exposure) is the necessary analogue of Forty-Eight’s potential" }, { "docid": "16590482", "title": "", "text": "of time. The insurance company covered the drug company starting two years after the injection and the policy expired eleven years before diagnosis. The court held against the insurance company, holding that occurrence coverage was possibly the broadest coverage and that the injury had occurred during the period of insurance coverage. Chief Judge Feikens relied upon this case as does this Court. INA v. Forty-Eight Insulations, supra, 451 F.Supp. at 1242. It should be noted particularly that if the manifestation theory were adopted, manufacturing companies would be unable to buy full products insurance protection. No insurer would undertake to protect completely a company which had exposed uncounted workers to a hazard for a period of years. This refusal would be likely in the instant case because of the probability of thousands of asbestos related injuries or diseases manifesting themselves at some future time. The unreality of the manifestation theory becomes even clearer when it is realized that in such a situation those companies which were paid premiums to cover the risk at the time of manufacture and exposure would be free and clear from fiscal responsibility. In this connection, it should be pointed out that the partial insurance available to Keene at the present time calls for large deductible sums at exorbitant premiums. The Michigan Court limited its opinion to asbestosis, but this Court finds that the exposure to and heavy inhalation of asbestos triggers the insurance coverage for the diseases mesothelioma and bronchogenic carcinoma as well. The link between asbestos and mesothelioma is well-established. Mesothelioma is a cancer of the mesothelial cells which line the chest walls and surround the organs of the chest cavity. It generally occurs 20 years or more after there has been excessive inhalation of asbestos fibers in those individuals who develop it. While it is easily discovered and diagnosed shortly after it develops, there is no satisfactory treatment of the disease and the victim almost always dies within several years of the tumor’s initial development. Dr. Gaensler testified that the initial injury leading to the disease occurs when an asbestos fiber travels down the" }, { "docid": "10560573", "title": "", "text": "for damages paid to asbestos health claimants, the determination of liability turns on the definition of the term “personal injury” as set forth in the Stonewall policy. Three divergent legal theories have evolved in interpreting the terms “personal injury” and “bodily injury” in the context of asbestos-related diseases. For our purposes herein, these two terms shall be treated as interchangeable. The three theories are known as (1) the Exposure Theory; (2) the Exposure-in-Residence Theory; and (3) the Manifestation Theory. Under the Exposure Theory, mere exposure to asbestos is determined to be sufficient to trigger coverage because “bodily injury” arises from exposure. See Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir.1980), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981); and Insurance Co. of N. America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir. 1980), clarified, 657 F.2d 814 (6th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981). Under the Manifestation Theory, manifestation of the disease during the policy period is the sole trigger to coverage because it is reasoned that the disease is not manifested until it is diagnosable. Under this theory, “bodily injury” means the manifestation of a diagnosable disease. See Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Co., 682 F.2d 12 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983). Under the Exposure-in-Residence Theory, it has been held that, since asbestos-related diseases are progressive, bodily injury occurs during the latency period of the disease continuously from exposure to manifestation. Coverage is triggered by a claim that a victim was either exposed to asbestos products, suffered exposure-in-residence, or manifested an asbestos-related disease during the policy period. See Lac D'Amiante, supra, 613 F.Supp. at 1555. The Pennsylvania Supreme Court has not ruled on the issue of which theory is applicable in asbestos health cases decided, like the instant claims, under the law of Pennsylvania. However, the Third Circuit concluded, in AC and S II, 764 F.2d at 972-73, that the Exposure, Exposure-in-Residence and Manifestation Theories all constitute bodily injury. In predicting how the Pennsylvania" }, { "docid": "7896758", "title": "", "text": "on Insurance 2d, § 15:16 (2d ed. Anderson 1959). The analysis of the insurers’ duty to indemnify Keene is divided into three logical steps: first, the trigger of coverage under the policies; second, the extent of coverage once a policy is triggered; and third, the allocation of liability among insurers if more than one policy is triggered. That analysis is followed by an examination of the insurers’ duty to defend Keene and a discussion of the procedural mechanisms by which asbestos-injury suits can be adjudicated. A. Trigger of Coverage The first step in the analysis of this problem is to determine what events, from the point of exposure to the point of manifestation, trigger coverage under these policies. In the language of the policies, the question is when did “injury” occur? Both Keene and Hartford advance slightly different versions of the “exposure theory” of coverage. Keene argues that successive coverage is triggered by both exposure to asbestos dust (“inhalation exposure”) and the subsequent development of disease (“exposure in residence”). Keene bases its argument on medical evidence that the body incurs microscopic injury as asbestos fibers become lodged in the lungs and as the surrounding tissue reacts to the fibers thereafter. Hartford also argues that successive coverage is triggered by continued exposure. Its argument is similarly based on the medical evidence of discrete tissue damage as each asbestos fiber reaches the lungs. For no apparent reason, however, Hartford asserts that the continued progression of disease following exposure does not trigger additional coverage. Basing its decision on Insurance Co. of N. America v. Forty-Eight Insulations, 633 F.2d 1212 (6th Cir. 1980), aff’d on rehearing, 657 F.2d 814 (6 Cir. 1981), the district court adopted Hartford’s version of the exposure theory. INA, Liberty, and Aetna advance the “manifestation” theory of coverage. They argue that coverage is triggered only by the manifestation of either asbestosis, mesothelioma or lung cancer. They assert that their interpretation of the contracts is supported by the ordinary meaning of the terms “bodily injury, sickness or disease.” They claim that “bodily injury” does not occur until cellular damage advances to" }, { "docid": "22073328", "title": "", "text": "more asbestos particles settle in the lungs over years of exposure, the disease worsens. At some point, asbestosis interferes with gas exchange in the lungs and clearly manifests itself. It is thus arguable that a worker’s asbestosis “occurred” during the many years that the worker was breathing in tiny asbestos particles and accumulating them in his lungs. This case principally concerns a dispute among Forty-Eight’s different insurance carriers over the years as to which carrier or carriers is liable under the above-cited policy provisions. IN A filed this diversity action in the district court, seeking a declaratory judgment on this issue. I. We are called upon in this case to construe uniform provisions in widely-used Comprehensive General Liability (CGL) insurance policies. We are presented with two different theories of construction. INA, Affiliated FM, Illinois National and Liberty Mutual, supported by several amici curiae, advocate the manifestation theory of liability. Under this theory, bodily injury in a case of asbestosis could not be deemed to have occurred until the asbestosis manifests itself. The date of manifestation is the date when the worker knew or should have known he has asbestosis, or the date that asbestosis is medically diagnosed, whichever came first. Accordingly, under the manifestation theory, those insurance companies on the risk when asbestosis manifests itself must pay any resultant judgment of liability. Simply put, the manifestation theory is that no “bodily injury” took place until asbestosis became apparent. Forty-Eight and Travelers, supported by numerous amici curiae, advocate the exposure theory. They argue that when asbestosis manifests itself has nothing to do with when “bodily injury” took place. They emphasize that the medical testimony establishes that tissue damage starts to occur shortly after the initial inhalation of asbestos fibers and that the tissue damage worsens as the victim breathes in more and more asbestos fibers. The advocates of the exposure theory characterize asbestosis as a series of continuing injuries to the body which accumulate to cause death or disability. Under this theory, asbestosis is a “continuing tort” and all insurance companies which provided coverage from the time of the worker’s initial" }, { "docid": "23196170", "title": "", "text": "Porter did not sustain bodily injury as the result of an occurrence during Aetna’s policy period since the sickness or disease did not manifest itself during Aetna’s policy. The Court also held that Continental was not liable because the “occurrence”, i. e., exposure to asbestos dust, occurred prior to its policy coverage. Hartford was held liable because exposure occurred and bodily injury manifested itself during its policy period. Since the District Court decided this case the Sixth Circuit has decided Insurance Company of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (1980). That Court rejected the “manifestation” theory of insurance coverage in asbestosis cases and accepted the “injurious exposure” theory. It held that the insurance coverage (liability) should be prorated among all the carriers as to liability for cumulative, progressive lung disease as a result of exposure to asbestos products, except that an insurer would not be liable for any period where there was no exposure to asbestos manufactured by the insured. We might prolong this already lengthy opinion by paraphrasing or rephrasing the Sixth Circuit opinion. We are content to say that we agree with its reasoning and result. Under the terms of the policies presently before us we reject the “manifestation” theory. We accept the “injurious exposure” theory and the logically consequent rule of proration of liability for insurance carriers who were on the coverage while the injured party was exposed to the asbestos hazards which resulted in illness and death. We, therefore, hold that the judgment of the District Court assessing coverage solely to Hartford must be reversed and the cause remanded for proration of coverage (liability) between Aetna and Hartford in keeping with the teachings of the Sixth Circuit opinion. We realize that proration of the exact amount of liability to be assessed to Aetna and Hartford may be complicated by other aspects of the insurance policies which are not presently in issue. We simply observe that elapsed time of insurance company coverage for the total time involved (1954-1974) should be the basic fundamental of the required apportionment. CONCLUSION The judgment of the District Court" }, { "docid": "13151910", "title": "", "text": "change from time to time. Considerable time went by before medical science comprehended the causal connection between the inhalation of asbestos fibers and injury or death resulting from what is now called “asbestosis” and other asbestos-related diseases. Medical knowledge was closely followed by legal action. J-M, among other asbestos manufacturers, faces thousands of lawsuits claiming huge aggregate sums. Naturally enough, it looks to its liability insurers. Equally naturally, each insurer prefers that J-M look elsewhere. The timing of coverage becomes crucial. This has given rise to the dispute between the “manifestation” theory of coverage and the “exposure” theory. Under the manifestation theory, “those insurers on the risk at the time the asbestos-related disease first manifested itself by way of medically diagnosable symptoms must provide coverage.” Under the exposure theory, “those insurers on the risk at the time of [a particular claimant’s] exposure to asbestos must indemnify” the insured “for a pro rata share of its liability, the proportion to be determined by the ratio of the number of years the insurer was on the risk to the total number of years of exposure.” Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Company, 682 F.2d 12, 16 (1st Cir.1982), cert. denied, - U.S. -, 103 S.Ct. 1280, 75 L.Ed.2d 500 (1983). Several circuits have reached conflicting decisions in declaratory judgment actions springing up to address this issue. The First Circuit in Eagle-Picher, supra, came down in favor of the manifestation approach. The Sixth Circuit favored the exposure theory in Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir.1980), modified on reh’g, 657 F.2d 814, cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981). In Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982), the District of Columbia Circuit devised a rationale for holding that all insurers on the risk from the period of initial exposure to the time of manifestation must provide coverage. The Fifth Circuit reached the same conclusion in Porter v. American Optical Co., 641 F.2d 1128" }, { "docid": "22073329", "title": "", "text": "is the date when the worker knew or should have known he has asbestosis, or the date that asbestosis is medically diagnosed, whichever came first. Accordingly, under the manifestation theory, those insurance companies on the risk when asbestosis manifests itself must pay any resultant judgment of liability. Simply put, the manifestation theory is that no “bodily injury” took place until asbestosis became apparent. Forty-Eight and Travelers, supported by numerous amici curiae, advocate the exposure theory. They argue that when asbestosis manifests itself has nothing to do with when “bodily injury” took place. They emphasize that the medical testimony establishes that tissue damage starts to occur shortly after the initial inhalation of asbestos fibers and that the tissue damage worsens as the victim breathes in more and more asbestos fibers. The advocates of the exposure theory characterize asbestosis as a series of continuing injuries to the body which accumulate to cause death or disability. Under this theory, asbestosis is a “continuing tort” and all insurance companies which provided coverage from the time of the worker’s initial exposure to time of the manifestation of the disease are jointly and severally liable to defend and to indemnify Forty-Eight if liability is found. The district court adopted the exposure theory. The court first noted that many of the insurance companies that now advocate the manifestation theory had initially embraced the exposure theory. The court found this initial conduct instructive as to the proper meaning of the policy provisions. The principal basis for the district court’s position, however, was the medical evidence. The medical testimony established that “each tiny deposit of scar-like tissue causes injury to a lung”. From this, the court reasoned that “each such insult-causing injury is an ‘occurrence’ for the purpose of determining which coverage applies.” 451 F.Supp. 1230, 1239 (E.D.Mich. 1978). Finally, the district court thought that the exposure theory best served the expectations of the contracting parties. The court emphasized that an injured worker who sues Forty-Eight makes out a prima-facie case by showing injury and exposure to Forty-Eight’s products. The plaintiff in such an underlying lawsuit can recover even" }, { "docid": "5703264", "title": "", "text": "exposure through manifestation jointly and severally obligated to defend and to indemnify Forty-Eight if liability is found. Following the decision in Borel, supra, holding all manufacturers of asbestos products to which a claimant was exposed jointly and severally liable, some insurers began to espouse the manifestation theory for coverage determination while others continued to advocate the exposure theory. Discussions and meetings have heightened the controversy and its continued existence is demonstrated by the fact that there are insurers on both sides of the issue in this declaratory judgment action. Forty-Eight has introduced numerous items of correspondence and other documents to show that even within certain insurance compa nies’ practices and positions relative to this coverage controversy have changed over time. In the three years prior to INA’s letter of June 27, 1977, Forty-Eight tendered the defense of approximately 150 lawsuits to INA and the other carriers involved in this action. In every instance a defense was provided — usually by INA — without a reservation of rights raising the point that manifestation of the disease must occur during the coverage period as a requirement for coverage. There is evidence that demonstrates that INA sought contribution and litigation expense arrangements with other insurers using periods of exposure as the determining factor. In some of the suits defended by INA without objection or reservation the manifestation date of a plaintiff’s disease came after the expiration of INA’s coverage. In all cases there is exposure alleged during INA’s policy periods. Illinois National and Affiliated FM also each declined coverage in specific cases on grounds that the dates of exposure alleged in the complaint were outside the coverage period of their respective policies. I accordingly conclude that the conduct and correspondence of some of the insurers in this case are instructive on the issue of interpretation of the policies involved. Brooklyn Life Ins. Co. v. Dutcher, 95 U.S. 410, 24 L.Ed. 410 (1877); Weger v. Robinson Nash Motor Co., 340 111. 81, 172 N.E. 7 (1930). The meaning the parties themselves attach to the terms of the contract can be inferred from their conduct." }, { "docid": "5703252", "title": "", "text": "Forty-Eight’s products containing asbestos. As of the date of this opinion 251 underlying lawsuits have been filed throughout the United States naming Forty-Eight as a defendant. All these suits also name additional defendants — in some cases as many as twenty (20). In a typical underlying lawsuit a plaintiff construction worker, employed for many years installing products containing asbestos, sues all of the manufacturers whose asbestos products were used at any of the construction sites at which he was employed. The amount of asbestos dust from each manufacturer’s product to which such worker was allegedly exposed or what amount he inhaled during any period of exposure cannot be determined with certainty. The exposures allegedly range in duration from a few years to as long as 48 years. Under the law of some jurisdictions in which these underlying suits are filed all of the manufacturers may be held jointly and severally liable for an entire damage award. See, Borel v. Fibreboard Paper Products, 493 F.2d 1076 (5th Cir. 1973); Prosser, Law of Torts, § 52 at 315-320 (4th Ed. 1971). In other jurisdictions the defendant manufacturers may have the burden of showing the proper apportionment of damages. Id. In all cases there is the potentiality that any or all of the defendant manufacturers may be held liable for damages. The dispute between the parties in this case results from their disagreements over the interpretation of the various insurance policies issued to Forty-Eight and concern their respective rights and obligations regarding coverage and the duty to defend. During the past 50 years Forty-Eight has had at least five (5) liability insurance carriers. The controversy as to coverage is whether the coverage at the time of exposure to asbestos or the'coverage at the time the disease manifests itself is the relevant coverage. Plaintiff INA and three of the defendant insurance carriers argue for the application of a “manifestation theory” while Forty-Eight and Travelers advocate an “exposure theory.” I. The parties have stipulated to most of the facts. In 1934 Forty-Eight, as a subsidiary of an Illinois corporation incorporated in 1923, began selling products" }, { "docid": "5703253", "title": "", "text": "315-320 (4th Ed. 1971). In other jurisdictions the defendant manufacturers may have the burden of showing the proper apportionment of damages. Id. In all cases there is the potentiality that any or all of the defendant manufacturers may be held liable for damages. The dispute between the parties in this case results from their disagreements over the interpretation of the various insurance policies issued to Forty-Eight and concern their respective rights and obligations regarding coverage and the duty to defend. During the past 50 years Forty-Eight has had at least five (5) liability insurance carriers. The controversy as to coverage is whether the coverage at the time of exposure to asbestos or the'coverage at the time the disease manifests itself is the relevant coverage. Plaintiff INA and three of the defendant insurance carriers argue for the application of a “manifestation theory” while Forty-Eight and Travelers advocate an “exposure theory.” I. The parties have stipulated to most of the facts. In 1934 Forty-Eight, as a subsidiary of an Illinois corporation incorporated in 1923, began selling products containing asbestos. From 1923 through 1970 Forty-Eight or its predecessor manufactured and sold various types of insulation blocks and cements containing asbestos for use on boilers, pipes, fittings, elbows, and flat surfaces. In 1970 it discontinued the use of asbestos in all its products. This fact does not necessarily end the possibility of its asbestos product liability, however, in that demolition or removal of structures containing old insulating materials may cause asbestos to become airborne and may cause injury to persons employed in such activity. Given the latent periods of asbestos-caused lung disease, it is also anticipated that additional actions will be brought against Forty-Eight alleging injury from past exposure. A. INSURANCE COVERAGE INA insured Forty-Eight in various policies from October 31, 1955 through October 31, 1972; Affiliated FM from October 31, 1972 through January 10, 1975; Illinois Na tional from January 10, 1975 through January 12, 1976; and Travelers from January 12, 1976 through November 8, 1976. Liberty Mutual became an insurer of Forty-Eight on November 8,1976 on a $100,000.00 deductible policy currently in" }, { "docid": "22073330", "title": "", "text": "exposure to time of the manifestation of the disease are jointly and severally liable to defend and to indemnify Forty-Eight if liability is found. The district court adopted the exposure theory. The court first noted that many of the insurance companies that now advocate the manifestation theory had initially embraced the exposure theory. The court found this initial conduct instructive as to the proper meaning of the policy provisions. The principal basis for the district court’s position, however, was the medical evidence. The medical testimony established that “each tiny deposit of scar-like tissue causes injury to a lung”. From this, the court reasoned that “each such insult-causing injury is an ‘occurrence’ for the purpose of determining which coverage applies.” 451 F.Supp. 1230, 1239 (E.D.Mich. 1978). Finally, the district court thought that the exposure theory best served the expectations of the contracting parties. The court emphasized that an injured worker who sues Forty-Eight makes out a prima-facie case by showing injury and exposure to Forty-Eight’s products. The plaintiff in such an underlying lawsuit can recover even if he cannot pinpoint the exact time when each injury occurred. Under Borel, supra, all asbestos manufacturers to whose products a worker was exposed are jointly and severally liable for the resultant, cumulative injury. By analogy, the district court reasoned that the manufacturers’ insurance coverage should parallel their liability, and that each insurance company should be jointly and severally liable to defend and indemnify the manufacturer. Otherwise, concluded the district court, the manufacturer’s insurance coverage would be illusory. All parties have appealed. II. In each case where a plaintiff sues an asbestos manufacturer, a hearing could be held to determine at what point the buildup of asbestos in the plaintiff’s lungs resulted in the body’s defenses being overwhelmed. At that point, asbestosis could truly be said to “occur”. From then on, all companies which insured the manufacturer would be treated as being “on the risk”. The only problem with this Solomonian interpretation is that no one wants it. The principle reason is cost. If medical testimony as to asbestosis’ origin would have to be taken" }, { "docid": "7595835", "title": "", "text": "diseases, it is often difficult to determine what occurrence triggers liability under a particular policy. The basic theories advanced by the courts in similar cases are the “exposure” theory, the “manifestation” theory, and the “continuous exposure” theory. These theories have generally been addressed by courts faced with determining the insurance liability coverage in asbestosis cases. See e.g. Insurance Co. of North America v. Forty-Eight Insulations, 633 F.2d 1212 (6th Cir.1980) clarified in part, 657 F.2d 814, cert. denied, 455 U.S. 1099, 102 S.Ct. 1648, 71 L.Ed.2d 878 (1982); Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981); Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982). The Sixth Circuit follows the exposure theory and holds that the obligations imposed upon insurance companies by the standard comprehensive general liability policy are triggered by “exposure” to asbestos-containing products during the policy period. Insurance Co. of North America v. Forty-Eight Insulations, 633 F.2d at 1225. In accord Porter v. American Optical Corp., 641 F.2d 1128. Under the exposure theory, which applies to diseases that are cumulative and progressive, bodily injury occurs when an exposure causing tissue damage takes place and not when physical symptoms caused by the disease manifest themselves. The District of Columbia Circuit, taking the exposure theory a step further, adopts the continuous exposure theory and holds that coverage is triggered by either exposure to asbestos products, i.e., injury suffered to the tissue after the asbestos fibers are imbedded in the tissue, or manifestation of asbestos-related disease during the policy period. Keene Corp. v. Insurance Co. of North America, 667 F.2d at 1047; A C and S, Inc. v. Aetna Casualty and Surety Co., 764 F.2d 968, (3rd Cir.1985). The First Circuit adopts the manifestation theory and concludes that coverage under these types of insurance policies is triggered by a claim that an asbestos disease has manifested itself during the policy period. Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Co., 682 F.2d 12," }, { "docid": "23205452", "title": "", "text": "We see no reason to create more difficulties for the parties than already exist in this complicated case. II. Those companies advancing the manifestation theory have presented no arguments to us that we did not carefully consider beforehand. We continue to believe that both the plain meaning rule of construction and the rule requiring construction of a policy in favor of the insured support the exposure theory. The companies are correct that not all workers exposed to asbestos fibers contract an asbestos related disease. However, for the worker who does contract asbestosis, the bodily injury first occurred when the worker first started breathing asbestos fibers. III. Forty-Eight, while generally content with our decision, has urged us to reconsider our decision to allocate defense costs the same as liability costs. Forty-Eight claims that we have given an unduly narrow construction to the insurance companies’ duty to defend. We adhere to our original position. The exposure theory provides a fair method of allocating insurance coverage. This same method can be readily applied to allocating defense costs as well as liability costs. Where costs can be readily apportioned, as here, it is reasonable to have Forty-Eight pay its fair share of defense costs as well as indemnification costs. Accordingly, the Petitions for Rehearing are granted in part, as outlined above, and otherwise denied. MERRITT, Circuit Judge, adheres to the position outlined in his dissenting opinion. . In its Petition for Rehearing, Forty-Eight cites as an example the situation where it is initially believed that Forty-Eight’s products injured a worker in a year in which Forty-Eight had insurance coverage. If it turns out that Forty-Eight’s products injured a worker in a non-covered year, Forty-Eight claims that it will have to pay the full cost of defending the suit. This ignores the presumption outlined in footnote 21 or our opinion under which continued exposure to Forty-Eight’s products is presumed for insurance coverage purposes. Forty-Eight will only have to pay full defense indemnity costs if there is strong evidence that exposure to Forty-Eight’s products only took place in years when Forty-Eight had no insurance coverage." } ]

[ { "docid": "4047013", "title": "", "text": "thereon, exemption from prosecution or punishment has been acquired by lapse of time, according to the laws of the High Contracting Party applying or applied to. Treaty on Extradition, Dec. 22, 1931, U.S.U.K., art. 5, 47 Stat. 2122 (“1931 Extradition Treaty”) (emphasis added). On its face, Article 5 prohibits extradition where, under United States or Bahamian law, “exemption from prosecution or punishment has been acquired by lapse of time” subsequent to: (1) “the commission of the crime or offence”; or (2) “the institution of the penal prosecution”; or (3) “the conviction thereon.” The Speedy Trial Clause of the United States Constitution is a “law” of the United States that, in some circumstances, bars prosecution due to “lapse of time” after “the institution of the penal prosecution.” See, e.g., Doggett v. United States, — U.S.-,-, 112 S.Ct. 2686, 2689, 120 L.Ed.2d 520 (1992). Thus, the text of the Treaty, if given its natural meaning, would incorporate the Constitution’s speedy trial protections. “In construing a treaty, as in construing a statute, we first look to its terms to determine its meaning.” United States v. Alvarez-Machain, — U.S.-,-, 112 S.Ct. 2188, 2193, 119 L.Ed.2d 441 (1992). When a particular treaty provision is ambiguous or difficult, “we may look beyond the written words” to consider the history of negotiation and other evidence of the parties’ intent. Eastern Airlines v. Floyd, 499 U.S. 530, 534-35, 111 S.Ct. 1489, 1493, 113 L.Ed.2d 569 (1991) (internal quote marks omitted). However, “it is particularly inappropriate for a court to sanction a deviation from the clear import of a solemn treaty between this Nation and a foreign sovereign, when ... there is no indication that application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.” Maximov v. United States, 373 U.S. 49, 54, 83 S.Ct. 1054, 1057, 10 L.Ed.2d 184 (1963); see also Restatement (Third) of Foreign Relations Law § 325(1) (1986) (“An international agreement is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in" } ]

[ { "docid": "19797113", "title": "", "text": "but “[w]hile the formalities of extradition may be waived ..., a demand in some form by the one country upon the other is required, in order to distinguish extradition from the unilateral act of one country, for its own purposes, deporting or otherwise unilater ally removing unwelcome aliens.” Stevenson v. United States, 381 F.2d 142, 144 (9th Cir.1967) (internal citation omitted); see also Michael Abbell, Extradition to AND FROM THE UNITED STATES § 7-2(2)-(4) (2008) (describing alternatives to extradition of criminal defendants, such as a request by the United States to another country for formal or “informal” deportation or, for U.S. citizens, passport revocation). The government did not demand Struck-man’s surrender pursuant to the Extradition Treaty; indeed, the record reveals that the government went to great lengths to avoid doing so. Moreover, the Panamanian government in its Resolutions expressly relied on its own interests in deporting Struckman, not its responsibilities under the Extradition Treaty. As Struck-man was not extradited, his argument that his “extradition” was not in compliance with the procedures set forth in the treaty fails. Although Struckman was not extradited, his transfer to the United States could still be prohibited by the Extradition Treaty, see United States v. Alvarez-Machain, 504 U.S. 655, 662, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992), if, for example, the Extradition Treaty made extradition the exclusive means to effect the cooperative transfer of a criminal defendant. In considering whether that was so here, we begin by looking to the Extradition Treaty’s express terms. See Alvarez-Machain, 504 U.S. at 663, 112 S.Ct. 2188. As in Alvarez-Machain, the Extradition Treaty does not provide that extradition is the exclusive means for one signatory to obtain a criminal defendant or fugitive from the territory of the other. Compare Providing for the Extradition of Criminals, U.S.-Pan., May 25, 1904, 34 Stat. 2851, with Extradition Treaty, May 4, 1978, U.S.-Mex., 31 U.S.T. 5059. In the Treaty with Panama, the signatories “agree to deliver up persons . who, having been charged with or convicted of any of the crimes and offenses specified in [the Extradition Treaty] ... shall seek ... asylum" }, { "docid": "22983569", "title": "", "text": "meaning of the Convention. Christina’s removal from Hong Kong— her habitual residence — was in violation of her father’s right of custody and was, therefore, wrongful pursuant to the Convention. Croll, 66 F.Supp.2d at 559. The court granted Mrs. Croll’s motion to stay its order of return pending expedited appeal to this Court. See Croll v. Croll, No. 99-3566 (S.D.N.Y. Oct.29,1999). DISCUSSION At issue on this appeal are two sets of rights recognized in the Convention to be distinct: rights of custody and rights of access. If Mr. Croll has custody rights, courts in the United States have jurisdiction to order return of Christina to Hong Kong, as the district court has done, and the duty to do so. If, however, Mr. Croll has the lesser rights of access, jurisdiction is lacking and Mr. Croll must rely on other remedies. The proper interpretation of the Hague Convention is an issue of law, which we review de novo. See Klos v. Polskie Linie Lotnicze, 133 F.3d 164, 167 (2d Cir.1997). “In construing a treaty, as in construing a statute, we first look to its terms to determine its meaning.” United States v. Alvarez-Machain, 504 U.S. 655, 663, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992) (citing Air France v. Saks, 470 U.S. 392, 397, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985), and Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 11, 57 S.Ct. 100, 81 L.Ed. 5 (1936)); see also Kahn Lucas Lancaster, Inc. v. Lark Int’l Ltd., 186 F.3d 210, 215 (2d Cir.1999) (“Treaties are construed in much the same manner as statutes.”) (citing Alvarez-Machain, 504 U.S. at 663, 112 S.Ct. 2188). The text of the treaty must be interpreted “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” Vienna Convention on the Law of Treaties, done May 23, 1969, art. 31.1, 1155 U.N.T.S. 331 (emphasis added). Where the text' — read in the context of its structure and purpose — is ambiguous, we may resort to extraneous tools of interpretation such" }, { "docid": "19928729", "title": "", "text": "fact that this theory finds no support in the plain language of the Treaty or in the historical application of the political offense exception, the absurd result reached in the above hypothetical is alone enough to condemn the proposed rule. See Walton v. Johnson, 440 F.3d 160, 181 (4th Cir.2006) (en banc) (Williams, J., concurring) (explaining that there is good reason to reject a test when the \"test founders in a hypothetical case that could come before the court”). TRAXLER, Circuit Judge, concurring: I agree that the magistrate judge correctly certified pursuant to 18 U.S.C.A. § 3184 (West Supp.2006) that Ordinola may be surrendered to Peru under the terms of the Extradition Treaty between the United States and Peru. Accordingly, I concur in the result reached by the majority opinion vacating the grant of habeas relief by the district court and directing reentry of the certification of extraditability. Because I would follow a different analytical approach, however, I write separately. I. The Judiciary’s Limited Role in International Extradition Cases Extradition is “the surrender by one nation to another of an individual accused or convicted of an offense outside of its own territory, and within the territorial jurisdiction of the other [nation], which ... demands the surrender.” Terlinden v. Ames, 184 U.S. 270, 289, 22 S.Ct. 484, 46 L.Ed. 534 (1902). There is no general duty under international law, however, for a sovereign nation to surrender an accused fugitive upon demand. See Factor v. Laubenheimer, 290 U.S. 276, 287, 54 S.Ct. 191, 78 L.Ed. 315 (1933). The right of one sovereign to demand that another sovereign extradite an accused criminal arises, if at all, by treaty; thus, no duty to surrender an alleged fugitive to a foreign government exists apart from an extradition treaty. See id.; see also United States v. Alvarez-Machain, 504 U.S. 655, 664, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992) (“Extradition treaties exist so as to impose mutual obligations to surrender individuals in certain defined sets of circumstances, following established procedures.”). Because extradition is a creature of treaty, “the power to extradite derives from the President’s power to" }, { "docid": "22223026", "title": "", "text": "its authority for requiring suppression, we have understood it to have a similar basis. See Ker v. California, 374 U. S. 23, 31 (1963). We also agree with the State of Oregon and the United States that our authority to create a judicial remedy applicable in state court must lie, if anywhere, in the treaty itself. Under the Constitution, the President has the power, “by and with the Advice and Consent of the Senate, to make Treaties.” Art. II, § 2, cl. 2. The United States ratified the Convention with the expectation that it would be interpreted according to its terms. See 1 Restatement (Third) of Foreign Relations Law of the United States § 325(1) (1986) (“An international agreement is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose”). If we were to require suppression for Article 36 violations without some authority in the Convention, we would in effect be supplementing those terms by enlarging the obligations of the United States under the Convention. This is entirely inconsistent with the judicial function. Cf. The Amiable Isabella, 6 Wheat. 1, 71 (1821) (Story, J.) (“[T]o alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty”). Of course, it is well established that a self-executing treaty binds the States pursuant to the Supremacy Clause, and that the States therefore must recognize the force of the treaty in the course of adjudicating the rights of litigants. See, e. g., Hauenstein v. Lynham, 100 U. S. 483 (1880). And where a treaty provides for a particular judicial remedy, there is no issue of intruding on the constitutional prerogatives of the States or the other federal branches. Courts must apply the remedy as a requirement of federal law. Cf. 18 U. S. C. § 2515; United States v. Giordano," }, { "docid": "19928730", "title": "", "text": "nation to another of an individual accused or convicted of an offense outside of its own territory, and within the territorial jurisdiction of the other [nation], which ... demands the surrender.” Terlinden v. Ames, 184 U.S. 270, 289, 22 S.Ct. 484, 46 L.Ed. 534 (1902). There is no general duty under international law, however, for a sovereign nation to surrender an accused fugitive upon demand. See Factor v. Laubenheimer, 290 U.S. 276, 287, 54 S.Ct. 191, 78 L.Ed. 315 (1933). The right of one sovereign to demand that another sovereign extradite an accused criminal arises, if at all, by treaty; thus, no duty to surrender an alleged fugitive to a foreign government exists apart from an extradition treaty. See id.; see also United States v. Alvarez-Machain, 504 U.S. 655, 664, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992) (“Extradition treaties exist so as to impose mutual obligations to surrender individuals in certain defined sets of circumstances, following established procedures.”). Because extradition is a creature of treaty, “the power to extradite derives from the President’s power to conduct foreign affairs.” Sidali v. INS, 107 F.3d 191, 194 (3d Cir.1997); see U.S. Const, art. II, § 2, cl. 2. Extradition, therefore, is an executive function rather than a judicial one. See, e.g., Martin v. Warden, 993 F.2d 824, 828 (11th Cir.1993). It involves a “diplomatic process carried out through the powers of the executive, not the judicial, branch.” Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1207 (9th Cir.2003). The decision to extradite is one that is “entirely within the discretion of the executive branch, except to the extent that the statute interposes a judicial function.” Lopez-Smith v. Hood, 121 F.3d 1322, 1326 (9th Cir.1997). Still, the judiciary plays a limited role in the overall extradition process, as prescribed by Congress in the Extradition Act. See 18 U.S.C.A. §§ 3181-3186 (West 2000 & Supp.2006); see Sidali, 107 F.3d at 194 (“[T]he judiciary has no greater role than that mandated by the Constitution, or granted to the judiciary by Congress.” (internal quotation marks omitted)). The essential function served by an extradition court" }, { "docid": "10700507", "title": "", "text": "not familiar with forms of legal expression, and were a dependent people, so any doubtful expressions in them should be resolved in the Indians’ favor. Nevertheless, “ . . . [T]his court does not possess any treaty-making power. That power belongs by the constitution to another department of the government; and to alter, amend or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be, on our part, an usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty. Neither can this court supply a casus omissus in a treaty, any more than in a law. We are to find out the intention of the parties, by just rules of interpretation, applied to the subject-matter; and having found that, our duty is to follow it, so far as it goes, and to stop where that stops — whatever may be the imperfections or difficulties which it leaves behind.” The Amiable Isabella, 19 U.S. 1, 32, 6 Wheat. 1, 70, 5 L.Ed. 191 (1821). That same language was quoted by Mr. Justice Harlan in United States v. Choctaw Nation and Chickasaw Nation, 179 U.S. 494, 533, 21 S.Ct. 149, 45 L.Ed. 291 (1900), in relation to an Indian treaty. He also said at page 532, 21 S.Ct. at page 164: “ . . .It has never been held that the obvious, palpable meaning of the words of an Indian treaty may be disregarded because, in the opinion of the court, that meaning may in a par ticular transaction work what it would regard as injustice to the Indians.” Thus it is only the ambiguities, if any, in the Treaty of 1868 which are to be construed at all, and those, of course, must be interpreted as the Indian signatories would have understood them and favorably to the Indians. The words of the treaty are quite consistent with the prime testimony of the traditional Indians and historians who testified. If “bad men among the Indians” commit a wrong upon someone who is “subject to" }, { "docid": "4822597", "title": "", "text": "We leave for perhaps another day whether the rule of non-inquiry would bar judicial review of the Secretary’s decision. B. There is a Valid Extradition Treaty in Force Between the United States and Honduras. Yacaman argues that the district court erred in denying his petition because there is not a valid extradition treaty between the United States and Honduras under which he can be extradited. He asserts that, between the June 2009 coup d’état and the election of President Lobo in early 2010, an illegitimate government ruled Honduras. Yacaman contends that the government failed to prove that Lobo’s government was a “successor state” entitled to assume the obligations under the extradition treaty previously adopted by a “legitimate” Honduran government. Yacamaris argument fails for two independent reasons. First, we defer to the executive in determining whether an extradition treaty remains in force. Second, the concept of successor state — which is central to Yacaman’s argument — has no application in this appeal. We address both of these reasons in turn. We must defer to the determination of the executive branch that the treaty between Honduras and the United States remains in force. “[T]he question whether power remains in a foreign State to carry out its treaty obligations is in its nature political and not judicial, and ... the courts ought not to interfere with the conclusions of the political department in that regard.” Terlinden v. Ames, 184 U.S. 270, 288, 22 S.Ct. 484, 491, 46 L.Ed. 534 (1902). We and “every other Court of Appeals to consider whether a treaty has lapsed ha[ve] deferred to the Executive’s determination.” Kastnerova, 365 F.3d at 986; see, e.g., United States ex rel. Saroop v. Garcia, 109 F.3d 165, 171 (3d Cir.1997); Then v. Melendez, 92 F.3d 851, 854 (9th Cir.1996); N.Y. Chinese TV Programs, Inc. v. U.E. Enters., Inc., 954 F.2d 847, 852 (2d Cir.1992); Sabatier v. Dabrowski, 586 F.2d 866, 868 (1st Cir.1978). Because a member of the executive branch attested that an extradition treaty remains in force between the United States and Honduras, we decline to hold the treaty invalid. And the" }, { "docid": "4020773", "title": "", "text": "Hong Kong’s reversion to China. “In construing a treaty, as in construing a statute, we first look to its terms to determine its meaning.” United States v. Alvarez-Machain, 504 U.S. 655, 663, 112 S.Ct. 2188, 2193, 119 L.Ed.2d 441 (1992) (citing Air France v. Saks, 470 U.S. 392, 397, 105 S.Ct. 1338, 1341, 84 L.Ed.2d 289 (1985); Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 11, 57 S.Ct. 100, 103-04, 81 L.Ed. 5 (1936)). Article I of the primary US-UK bilateral extradition treaty provides that “[e]ach Contracting Party undertakes to extradite to the other” persons accused or convicted of certain enumerated offenses “subject to the conditions specified in this Treaty.” Among the conditions that the treaty specifies are those found in Article XII, which incorporates a “specialty” provision, a common feature of extradition treaties, and contains a prohibition against a relator’s re-extradition to stand trial in a third state. Article XII in relevant part provides: (1) A person extradited shall not be detained or proceeded against in the territory of the requesting Party for any offense other than an extraditable offense established by the facts in respect of which his extradition has been granted, or on account of any other matters, nor be extradited by that Party to a third State— (a) until after he has returned to the territory of the requested Party; or (b) until the expiration of thirty days after he has been free to return to the territory of the requested Party. Lui’s case raises the difficult question of the proper interpretation to be given to this Article of the extradition treaty and the specialty provision incorporated therein in the peculiar situation that the record reveals. The evidence shows and the government concedes that Lui will be tried in the court system of a sovereign other than that of the requesting Party and different than the one he would have been tried by but for the reversion of sovereignty over Hong Kong to China. As the district court found in granting habeas relief, the “uncontradicted evidence” establishes, as the government now concedes, that “[t]he" }, { "docid": "4020772", "title": "", "text": "1972 — a primary agreement and a supplemental treaty — that both the United States and the United Kingdom have signed and ratified. The main treaty applies to Hong Kong by an exchange of diplomatic notes made in October 1976, see 28 U.S.T. at 238-41, while the supplemental treaty by its terms applies to the United Kingdom and “the territories for whose international relations the United Kingdom is responsible,” which, as listed in an annex, includes Hong Kong. In 1984, the United Kingdom and the People’s Republic of China issued a Joint Declaration, which was ratified and entered into force in 1985, under which sovereignty over Hong Kong will revert to China on July 1, 1997. In 1985, the United States signed the supplemental treaty and the United States Senate ratified it the following year. Despite being ratified after the well-publicized Sino-British Joint Declaration regarding Hong Kong’s future status, the supplemental treaty says nothing about fugitives sought for extradition (“relators”) to Hong Kong, like Lui Kin-Hong, who can demonstrate that their trial will occur after Hong Kong’s reversion to China. “In construing a treaty, as in construing a statute, we first look to its terms to determine its meaning.” United States v. Alvarez-Machain, 504 U.S. 655, 663, 112 S.Ct. 2188, 2193, 119 L.Ed.2d 441 (1992) (citing Air France v. Saks, 470 U.S. 392, 397, 105 S.Ct. 1338, 1341, 84 L.Ed.2d 289 (1985); Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 11, 57 S.Ct. 100, 103-04, 81 L.Ed. 5 (1936)). Article I of the primary US-UK bilateral extradition treaty provides that “[e]ach Contracting Party undertakes to extradite to the other” persons accused or convicted of certain enumerated offenses “subject to the conditions specified in this Treaty.” Among the conditions that the treaty specifies are those found in Article XII, which incorporates a “specialty” provision, a common feature of extradition treaties, and contains a prohibition against a relator’s re-extradition to stand trial in a third state. Article XII in relevant part provides: (1) A person extradited shall not be detained or proceeded against in the territory of the requesting Party" }, { "docid": "6093679", "title": "", "text": "its signatories”), . As early as 1821, the Supreme Court recognized that: [Tjhis Court does not possess any treaty-making power. That power belongs by the constitution to another department of the Government; and to alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty. Neither can this Court supply a casus omissus in a treaty, any more than in a law. We are to find out the intention of the parties by just rules of interpretation applied to the subject matter; and having found that, our duty is to follow it as far as it goes, and to stop where that stops-whatever may be the imperfections or difficulties which it leaves behind. The Amiable Isabella, 19 U.S. 1, 71, 6 Wheat. 1, 5 L.Ed. 191 (1821); accord Sanchez-Llamas, 126 S.Ct. at 2679. . As of 1929, when the Warsaw Convention was negotiated, the term \"forum non conveniens ” was not even in use in courts in the United States, although some American courts had recognized the discretion of trial courts to refuse jurisdiction in certain types of cases. See Edward L. Barrett, Jr., The Doctrine of Forum Non Conveniens, 35 Cal. L.Rev. 380, 386-89 (1947); Alexander Reus, Judicial Discretion: A Comparative View of the Doctrine of Forum Non Conveniens in the United States, the United Kingdom, and Germany, 16 Loy. L.A. Int’l & Comp. L.J. 455, 460-464. By 1941, Justice Frankfurter referred to the \"familiar doctrine of forum non conveniens” as a manifestation of a civilized judicial system which is \"firmly imbedded in our law.” Baltimore & O.R. Co. v. Kepner, 314 U.S. 44, 55-56, 62 S.Ct. 6, 86 L.Ed. 28 (1941) (Frankfurter, J., dissenting). Even then, however, the parameters of the doctrine remained unclear until 1947, when the United States Supreme Court decided Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and Roster v. Lumbermens Mut. Cas." }, { "docid": "23094298", "title": "", "text": "45 (noting that “there is respectable authority for denying head-of-state immunity to a former head-of-state for private or criminal acts” and finding that immunity claim was waived by the government of the foreign defendant). Accordingly, we find no error by the district court on this point. 2. Noriega next contends his conviction should be reversed because he alleges he was brought to the United States in violation of the Treaty Providing for the Extradition of Criminals, May 25, 1904, United States of America-Republic of Panama, 34 Stat. 2851 (“U.S.-Panama Extradition Treaty”). The Supreme Court’s decision in United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992), forecloses this argument. In Alvarez-Machain, the Court considered the issue of “whether a criminal defendant, abducted to the United States from a nation with which it has an extradition treaty, thereby acquires a defense to the jurisdiction of this country’s courts.” Id. at 657. In answer, the Court stated: “We hold that he does not, and that he may be tried in federal district court for violations of the criminal law of the United States.” Id. In reaching this decision, the Court considered whether the treaty at issue expressly barred abductions. It determined that the treaty’s provision that “ ‘[njeither Contracting Party shall be bound to deliver up its own nationals ... ’ [fails] to specify the only way in which one country may gain custody of a national of the other country for purposes of prosecution.” Id. at 663-64, 112 S.Ct. at 2193-94 (quoting Extradition Treaty, May 4, 1978, United States of America-United Mexican States, 31 U.S.T. 5059 (“U.S.-Mexieo Extradition Treaty”)). The Court also rejected the argument that, by entering into an extradition treaty with Mexico, the United States impliedly agreed to seek custody of persons in Mexico only via extradition. Id. at 668-69, 112 S.Ct. at 2195-96 (“[T]o infer from this Treaty and its terms that it prohibits all means of gaining the presence of an individual outside of its terms goes beyond established precedent and practice.”). The article of the U.S.-Panama Extradition Treaty upon which Noriega relies" }, { "docid": "9398678", "title": "", "text": "900 F.2d 8, 9-10 (2d Cir. 1990)); see also Choctaw Nation, 179 U.S. at 531, 21 S.Ct. 149. In such cases, courts must “be governed by the text—solemnly adopted by the governments of many separate nations—whatever conclusions might be drawn from the intricate drafting history”. Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989). Courts must give effect to the treaty’s terms “in the manner and to the extent which the parties have declared, and not otherwise.” The Amiable Isabella, 19 U.S. 1, 72, 6 Wheat. 1, 5 L.Ed. 191 (1821). When the text is unambiguous, “a court shall not, through interpretation, alter or amend the treaty.” Victoria Sales Corp. v. Emery Air Freight, Inc., 917 F.2d 705, 707 (2d Cir.1990) (citing Chan, 490 U.S. at 134, 109 S.Ct. -1676); see also The Amiable Isabella, 19 U.S. at 71, 6 Wheat. 1 (holding that “to alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be ... an usurpation of power, and not an exercise of judicial functions.”). When construing a treaty, the court must give the terms their ordinary meaning in context of the treaty, and, unless the terms are unclear, “it should rarely be necessary to rely on extrinsic evidence in order to construe a treaty.” Xerox Corp. v. United States, 41 F.3d 647, 652 (Fed.Cir.1994). However, when the text of a treaty is unclear, courts may resort to extrinsic evidence to aid in its interpretation. See Chan, 490 U.S. at 134, 109 S.Ct. 1676 (citing Air France v. Saks, 470 U.S. 392,105 S.Ct. 1338, 84 L.Ed.2d 289 (1985)); see also Choctaw Nation, 179 U.S. at 531, 21 S.Ct. 149; Brink’s Ltd., 93 F.3d at 1027. The courts “may look behind the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.” Air France, 470 U.S. at 396, 105 S.Ct. 1338 (citation omitted). Treaties that are susceptible of multiple interpretations “shall be liberally construed, so as to carry out the apparent intention of" }, { "docid": "22041921", "title": "", "text": "government should have disclosed that government witness Cyzeridis had tried to bribe another government witness, Vasu-ras. The district court denied the defense motion for a mistrial, holding that the government had no obligation to disclose anything in reference to Cyzeridis. Additionally, Appellant argues that venue was not proper in Hawaii and that the sentencing judge erred in denying him a mitigating role adjustment. And, finally, we construe a letter filed by Appellant pursuant to Rule of Appellate Procedure 28(j) as arguing that he was sentenced, in violation of the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), on the basis of a quantity of cocaine that was not determined by the jury, but rather by the judge at sentencing. Discussion 1. Standing to Raise Procedural Violations of an Extradition Treaty The United States argues that Appellant has no standing to raise noncompliance with procedural provisions of the Treaty as a bar to jurisdiction in the district court. We agree. An early Supreme Court case, United States v. Rauscher, 119 U.S. 407, 409-10, 430, 433, 7 S.Ct. 234, 30 L.Ed. 425 (1886), recognized the right of a person extradited to enforce what has become known as a “specialty” provision in a treaty-a requirement that the receiving country may proceed against the person extradited only for offenses that are enumerated in the treaty and upon which extradition actually rested. In Rauscher, the treaty enumerated murder as an eligible offense, and extradition rested on that offense, but the defendant was tried and convicted for the then-existing lesser offense of “cruel and unusual punishment.” Id. at 409-10, 7 S.Ct. 234. The Supreme Court reversed. Id. at 433, 7 S.Ct. 234. A more recent Supreme Court case, United States v. Alvarez-Machain, 504 U.S. 655, 659-60, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992), expressed agreement that a defendant may not be prosecuted in violation of the terms of an extradition treaty, citing Rauscher. But there the Court held that a treaty could not be violated where it was not invoked (because the defendant had in fact been" }, { "docid": "14164313", "title": "", "text": "French legal materials and the drafting history of Article 17 to better understand the meaning of that provision, and (c) did not try to conform its construction of the Warsaw Convention to the treaty’s purposes. As such, the persuasive force of that decision is limited. Cf. Katsuko Hosaka, 305 F.3d at 1002. Second, we reject the Roselawn Court’s criticism as misguided. In Roselawn, the district court indicated that Article 17 could be construed only to require a causal connection between mental and bodily injuries if a court rewrote the terms of the Warsaw Convention for improper policy reasons. See 954 F.Supp. at 179. We disagree. We read Article 17 to impose such a requirement because that construction is consistent with the text of the treaty, French law, the negotiating history as well as the purposes of the Warsaw Convention, and, as we shall shortly discuss, the judicial decisions of sister signatory nations and the views of our Executive Branch. As Justice Story explained when he discussed the pertinent principles that courts should apply to the construction of a treaty: We are to find out the intention of the parties by just rules of interpretation applied to the subject matter; and having found that, our duty is to follow it as far as it goes, and to stop where that stops — whatever may be the imperfections or difficulties which it leaves behind. The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 71, 5 L.Ed. 191 (1821); see also Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134-35, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989). We adhere to that directive by arriving at our interpretation of Article 17 through the traditional and legitimate tools of treaty construction, as delineated by the Supreme Court in Saks, Floyd, Zicherman, and Tsui Yuan Tseng, rather than through some supposed foray into the realm of judicial policy-making. F. Judicial Decisions of Sister Signatories When we search for the meaning of the words employed in the Warsaw Convention, we may consult the judicial decisions of our sister signatories to the Convention. See Floyd, 499 U.S. at" }, { "docid": "19170263", "title": "", "text": "out (see KKM Mot. at 7; Gov’t Resp. at 1) that, as a general rule, the manner by which a defendant is brought before a court does not affect that court’s proper assertion of jurisdiction in criminal eases.’ See Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541 (1952) (“[D]ue process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.”). In United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992), the Supreme Court considered the case of a defendant whose kidnaping from Mexico was overseen by American DEA officials. In addition to noting that there was no express prohibition on forcible abductions in the United States’ extradition treaty with Mexico, the Alvarez-Machain Court highlighted that there was no provision in the treaty that formal extradition was the sole means of transferring or acquiring custody of a suspected criminal. Id. at 664-66, 112 S.Ct. 2188. The same is true of the bilateral treaty governing extraditions between South Africa and the United States at the time of Khalfan Mohamed’s arrest and removal. Treaty of Extradition, December 18, 1947, U.S.-S. Afr., 2 U.S.T. 884. There is no provision in the treaty that expressly prohibits the procedures followed in this case and no statement that the procedures outlined in the treaty were the sole means of transferring custody of a suspected criminal. Id. In the absence of a treaty violation, the Ker/Fñsbie doctrine controls and Mohamed is not entitled to the relief he seeks. See Alvarez-Machain, 504 U.S. at 669-70, 112 S.Ct. 2188. The Second Circuit case most often cited as the exception to the Ker/Fñsbie and Alvarez-Machain line of decisions, United States v. Toscanino, 500 F.2d" }, { "docid": "22983570", "title": "", "text": "construing a statute, we first look to its terms to determine its meaning.” United States v. Alvarez-Machain, 504 U.S. 655, 663, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992) (citing Air France v. Saks, 470 U.S. 392, 397, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985), and Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 11, 57 S.Ct. 100, 81 L.Ed. 5 (1936)); see also Kahn Lucas Lancaster, Inc. v. Lark Int’l Ltd., 186 F.3d 210, 215 (2d Cir.1999) (“Treaties are construed in much the same manner as statutes.”) (citing Alvarez-Machain, 504 U.S. at 663, 112 S.Ct. 2188). The text of the treaty must be interpreted “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” Vienna Convention on the Law of Treaties, done May 23, 1969, art. 31.1, 1155 U.N.T.S. 331 (emphasis added). Where the text' — read in the context of its structure and purpose — is ambiguous, we may resort to extraneous tools of interpretation such as a treaty’s ratification history and subsequent operation. See Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982) (“The clear import of treaty language controls unless application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.”) (internal quotation marks and citations omitted); cf. Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 n. 5, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989) (“Even if the text were less clear, its most natural reading could properly be contradicted only by clear drafting history.”). So far as we can tell, we and the district court in this case are the only courts in the United States to consider whether rights of access coupled with a ne exeat clause confer “custodial rights” on a non-custodial parent within the meaning of the Hague Convention. We therefore start from scratch, and consult (A) the purpose and design of the Convention, (B) its wording, (C) the intent of its" }, { "docid": "10700506", "title": "", "text": "or to become due to them under this or other treaties made with the United States 9f Extensive evidence was offered at the hearing on the present motion regarding the Indians’ understanding of that provision. This was in keeping with the rule that: “Of course, treaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties. (Citations omitted.) Especially is this true in interpreting treaties and agreements with the Indians; they are to be construed, so far as possible, in the sense in which the Indians understood them, and ‘in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people.’ (Citations omitted.)” Choctaw Nation of Indians v. United States, 318 U.S. 423, 431-32, 63 S.Ct. 672, 678, 87 L.Ed. 877 (1943). The liberal application to Indian treaties is based upon the fact that the Indian people had no written language, were not familiar with forms of legal expression, and were a dependent people, so any doubtful expressions in them should be resolved in the Indians’ favor. Nevertheless, “ . . . [T]his court does not possess any treaty-making power. That power belongs by the constitution to another department of the government; and to alter, amend or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be, on our part, an usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty. Neither can this court supply a casus omissus in a treaty, any more than in a law. We are to find out the intention of the parties, by just rules of interpretation, applied to the subject-matter; and having found that, our duty is to follow it, so far as it goes, and to stop where that stops — whatever may be the imperfections or difficulties which it leaves behind.” The Amiable Isabella, 19 U.S. 1, 32, 6 Wheat." }, { "docid": "3846256", "title": "", "text": "ensure compliance with the Convention] and in this case by treaty is a personal one.” Moreover, the language of the provision is not precatory, but rather mandatory and unequivocal. See INS v. Cardoza-Fonseca, 480 U.S. 421, 441, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (contrasting mandatory obligations and “precatory” provisions under the United Nations Protocol Relating to the Status of Refugees). Accordingly, individual foreign nationals have rights under Article 36(l)(b) of the Vienna Convention. The government further contends that, even if the Vienna Convention establishes individual rights, individuals do not have standing to enforce those rights. This contention lacks merit. It has long been recognized that, where treaty provisions establish individual rights, these rights must be enforced by the courts of the United States at the behest of the individual. See United States v. Rauscher, 119 U.S. 407, 418-19, 7 S.Ct. 234, 30 L.Ed. 425 (1886) (citing Head Money Cases, 112 U.S. 580, 5 S.Ct. 247, 28 L.Ed. 798 (1884)); see also United States v. Alvarez-Machain, 504 U.S. 655, 659-60, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992) (recognizing the continuing authority of Rauscher). Because Article 36(l)(b) establishes individual rights, these rights must be enforced by our courts. IV. The final question is the appropriate remedy for an Article 36 violation. In considering this matter, we look first to the language of the Article. See Alvarez-Machain, 504 U.S. at 663, 112 S.Ct. 2188 (“In construing a treaty ... we first look to its terms to determine its meaning.”). Article 36(2) provides: “The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must not nullify these rights.” Convention, art. 36(2). Despite the importance of the Vienna Convention, and its status as the supreme law of the land, law enforcement officials continue to overlook the rights Article 36(l)(b) establishes for foreign nationals who are “arrested, in prison, custody, or detention.” Convention, art. 36(l)(b). By failing to complain of these violations at trial, however, most individual defendants have “failed" }, { "docid": "14015972", "title": "", "text": "statutory interpretation that in construing a statute, courts must first look to the plain meaning of the statute itself.” Solis-Ramirez v. United States Dep’t of Justice, 758 F.2d 1426, 1430 (11th Cir.1985) (per curiam). “When the text of the statute is clear, our interpretive inquiry ends.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 538, 114 S.Ct. 1023, 1035, 127 L.Ed.2d 455 (1994) (Thomas, J., concurring). “‘In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.’ ” Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975) (citation omitted). Penal laws are construed strictly because legislatures, not courts, define crimes and establish punishments. See Yates v. United States, 354 U.S. 298, 304, 77 S.Ct. 1064, 1069, 1 L.Ed.2d 1356 (1957), overruled on other grounds, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Therefore, “we must adopt the plain meaning of a statute, however severe the consequences.” Jay v. Boyd, 351 U.S. 345, 357, 76 S.Ct. 919, 927, 100 L.Ed. 1242 (1956). “When interpreting a treaty, we ‘begin “with the text of the treaty and the context in which the written words are used.” ’ ” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699, 108 S.Ct. 2104, 2108, 100 L.Ed.2d 722 (1988) (citations omitted). In construing treaties, “ ‘ “we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.” ’ ” Id. at 700, 108 S.Ct. at 2108. Under the Supremacy Clause, “an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty.” Reid v. Covert, 354 U.S. 1, 18, 77 S.Ct. 1222, 1231, 1 L.Ed.2d 1148 (1957). While we construe treaties and statutes alike in determining meaning from the terms, see United States v. Alvarez-Machain, 504 U.S. 655, 663, 112 S.Ct. 2188, 2193, 119 L.Ed.2d 441 (1992), the “rule of equality” prohibits implementing statutory law that renders" }, { "docid": "6093678", "title": "", "text": "S.R.L. v. British Airways, PLC, [1996] Q.B. 702 (Eng.C.A.), the Court of Appeal of England concluded that Article 28 of the Warsaw Convention precluded application of the forum non conveniens doctrine in Convention cases. . See In re Commissioner’s Subpoenas, 325 F.3d 1287, 1296 (11th Cir.2003) (noting that “in treaty interpretation as in statutory interpretation, particular provisions may not be divorced from the document as a whole and read in insolation”); Itel Containers Int’l v. Huddleston, 507 U.S. 60, 65-66, 113 S.Ct. 1095, 122 L.Ed.2d 421 (1993) (rejecting an interpretation of an international convention that would render some of its language superfluous); see also Maximov v. U.S., 373 U.S. 49, 54, 83 S.Ct. 1054, 10 L.Ed.2d 184 (1963) (stating that “it is particularly inappropriate for a court to sanction a deviation from the clear import of a solemn treaty between this Nation and a foreign sovereign, when ... there is no indication that application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories”), . As early as 1821, the Supreme Court recognized that: [Tjhis Court does not possess any treaty-making power. That power belongs by the constitution to another department of the Government; and to alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty. Neither can this Court supply a casus omissus in a treaty, any more than in a law. We are to find out the intention of the parties by just rules of interpretation applied to the subject matter; and having found that, our duty is to follow it as far as it goes, and to stop where that stops-whatever may be the imperfections or difficulties which it leaves behind. The Amiable Isabella, 19 U.S. 1, 71, 6 Wheat. 1, 5 L.Ed. 191 (1821); accord Sanchez-Llamas, 126 S.Ct. at 2679. . As of 1929, when the Warsaw Convention" } ]

[ { "docid": "5007988", "title": "", "text": "Kraft does not bind Anaconda, since Kraft lacked actual or apparent authority to engage in the transaction. Plaintiff concedes that Kraft had no actual authority to bind Anaconda to this undertaking; it relies solely on Kraft’s apparent authority to do so. Since on this record it is clear that Kraft lacked apparent authority to engage in the transactions considered, Anaconda’s other defenses need not be addressed. The general rule in New York is that “[o]ne who deals with an agent does so at his peril, and must make the necessary effort to discover the actual scope of authority.” Ford v. Unity Hospital, 32 N.Y.2d 464, 472, 346 N.Y.S.2d 238, 244, 299 N.E.2d 659, 664 (1973). The doctrine of apparent authority delineates the grounds for imposing on the principal losses caused by its agent’s unauthorized acts. The law recognizes that an agent, such as Kraft, may engage in a fraudulent transaction entirely without his principal’s approval but nevertheless under circumstances that warrant holding his principal accountable. As the Court of Appeals for this Circuit explained: Apparent authority is based on the principle of estoppel. It arises when a principal places an agent in a position where it appears that the agent has certain powers which he may or may not possess. If a third person holds the reasonable belief that the agent was acting within the scope of his authority and changes his position in reliance on the agent’s act, the principal is estopped to deny that the agent’s act was not authorized. Masuda v. Kawasaki Dockyard Co., 328 F.2d 662, 665 (2d Cir. 1964). The doctrine rests not upon the agent’s acts or statements but upon the acts or omissions of the principal. It is invoked when the principal’s own misleading conduct is responsible for the agent’s ability to mislead. Ford v. Unity Hospital, supra, 32 N.Y.2d at 473, 346 N.Y.S.2d at 244, 299 N.E.2d at 664. As defined in the Restatement a principal causes his agent to have apparent authority by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person" } ]

[ { "docid": "5530603", "title": "", "text": "New York law, “an agent must have authority, whether apparent, actual or implied, to bind his principal.” Merrill Lynch Interfunding, Inc. v. Argenti, 155 F.3d 113, 122 (2d Cir.1998). Actual authority “arises from a manifestation from principal to agent.” Carte Blanche (Singapore) PTE., Ltd. v. Diners Club Int’l, Inc., 758 F.Supp. 908, 919 (S.D.N.Y.1991); see also Empire Communications Consultants, Inc. v. Pay TV, 126 A.D.2d 598, 510 N.Y.S.2d 893, 895 (2d Dep’t 1987). The consent for actual authority may be “either express or implied from ‘the parties’ words and conduct as construed in light of the surrounding circumstances.’ ” Carte Blanche, 758 F.Supp. at 919 (quoting Riverside Research Inst. v. KMGA, Inc., 108 A.D.2d 365, 489 N.Y.S.2d 220, 223 (1st Dep’t 1985)). For apparent authority to exist, there must be “ “words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction’ ” on behalf of the principal. Standard Funding Corp. v. Lewitt, 89 N.Y.2d 546, 656 N.Y.S.2d 188, 191, 678 N.E.2d 874 (1997) (quoting Hallock v. State, 64 N.Y.2d 224, 485 N.Y.S.2d 510, 513, 474 N.E.2d 1178 (1984)). “In such circumstances, the third party’s reasonable reliance upon the appearance of authority binds the principal.” Id.; see also Marfia v. T.C. Ziraat Bankasi 100 F.3d 243, 251 (2d Cir.1996). A related equitable estoppel doctrine can also bind the principal where the third party reasonably relies on the principal’s knowing misrepresentations. Cinema N. Corp. v. Plaza At Latham Assocs., 867 F.2d 135, 141 (2d Cir.1989). Similarly, the principal can be deemed to ratify an unauthorized transaction after the fact “where the principal retains the benefit ... with knowledge of the material facts.” Standard Funding Corp., 656 N.Y.S.2d at 191, 678 N.E.2d 874; see also New Haven Radio, Inc. v. Meister (In re Martin-Trigona), 760 F.2d 1334, 1341 (2d Cir.1985). The Complaint alleges no facts to support the existence of actual authority bestowed upon the Bermuda entities by EYI. While the Complaint points to a letter indicating that K & W and FASB functioned" }, { "docid": "10496692", "title": "", "text": "In other words, it is only when the transaction is extraordinary or so novel that it should alert the third party to the danger of fraud, that there is an additional duty to inquire into the agent’s authority. See e.g., Collision Plan Unlimited Inc. v. Bankers Trust Co., 63 N.Y.2d 827, 830, 482 N.Y.S.2d 252, 253, 472 N.E.2d 28, 29 (1984) (the court explained that “the mortgage arrangement should have triggered the duty of reasonable inquiry since a gratuitous guarantee by a corporation of a debt of an unrelated corporation is extraordinary”); Whitney v. Citibank N.A., 782 F.2d 1106, 1115-1116 (2d Cir.1986) (absent awareness of facts indicating that an agent is acting beyond his real or apparent authority, a third party is not obligated to investigate the matter further or search for some limitation on that partner’s authority); General Overseas Films Ltd. v. Robin Int’L Inc., 542 F.Supp. 684, 696 (S.D.N.Y.1982), aff'd, 718 F.2d 1085 (2d Cir.1983). When analyzing New York State law regarding apparent authority, the Second Circuit found that unless the circumstances were unusual, thereby putting the third party on notice to further inquire, New York law does not require investigation beyond reliance on the action of the principal and agent. Herbert Cons. Co., 931 F.2d at 996. In explaining why it came to this conclusion, the Second Circuit noted: Were this not the rule, such a duty of inquiry would nullify the doctrine of apparent authority in almost every case. Instead, the duty of inquiry amounts to an alternative way of asking whether the third party reasonably relied on the representations of the agent that he possessed authority to bind the principal. Id. In point of fact, this analysis is consistent with the very law relied upon by BWIA. Accurately quoting from the New York State Court of Appeals, BWIA states, “[o]ne who deals with an agent does so at his peril, and must make the necessary effort to discover the actual scope of authority” (Defendant’s Post-Trial Brief, p. 29, quoting, Ford, 32 N.Y.2d at 472-473, 346 N.Y.S.2d at 243-245, 299 N.E.2d at 663-664). However, the court" }, { "docid": "10496691", "title": "", "text": "BWIA asserts that the doctrine of apparent authority is not available to Towers because it did not make a reasonable investigation into the scope of Blake’s authority. Specifically, it contends that the failure of Towers to ferret out BWIA’s 1984 Policy on Financial Authority, demonstrates that Towers did not engage in a reasonable investigation regarding Blake’s authority. The policy manual provides that the authority to negotiate and execute leases of buildings was limited to: a) the Board of Directors of Trinidad and Tobago (BWIA International) Airways Corporation; b) its Chairman of the Board; and c) its Managing Director (Exh. 11). The court finds BWIA’s argument is unconvincing. Contrary to BWIA’s claims, under the circumstances in this case, Towers was under no duty inquire any further than it did as to Blake’s authority. In the apparent authority context, the duty to additionally inquire arises when the situation creates circumstances which would lead a reasonable third party to believe that investigation would be necessary. Herbert Constr. Co. v. Continental Ins. Co., 931 F.2d 989, 995-96 (2d Cir.1991). In other words, it is only when the transaction is extraordinary or so novel that it should alert the third party to the danger of fraud, that there is an additional duty to inquire into the agent’s authority. See e.g., Collision Plan Unlimited Inc. v. Bankers Trust Co., 63 N.Y.2d 827, 830, 482 N.Y.S.2d 252, 253, 472 N.E.2d 28, 29 (1984) (the court explained that “the mortgage arrangement should have triggered the duty of reasonable inquiry since a gratuitous guarantee by a corporation of a debt of an unrelated corporation is extraordinary”); Whitney v. Citibank N.A., 782 F.2d 1106, 1115-1116 (2d Cir.1986) (absent awareness of facts indicating that an agent is acting beyond his real or apparent authority, a third party is not obligated to investigate the matter further or search for some limitation on that partner’s authority); General Overseas Films Ltd. v. Robin Int’L Inc., 542 F.Supp. 684, 696 (S.D.N.Y.1982), aff'd, 718 F.2d 1085 (2d Cir.1983). When analyzing New York State law regarding apparent authority, the Second Circuit found that unless the circumstances were" }, { "docid": "7683831", "title": "", "text": "agreement, an agency relationship must be established between Cooper Hill and Fidelity whereby Lowell had authority to bind Fidelity to the contract with RAB. Actual agency relationships include both express and implied agencies. An express agency relationship did not exist between Cooper Hill and Fidelity because their contract specifically limited the power of the manager to bind the owner to any type of union contract or collective bargaining agreement. An implied agency is inferred from the facts and circumstances of the particular case, including the words and conduct of the parties. Since Cooper Hill and Fidelity had no prior dealings, an implied agency may not be inferred on this basis. However, if defendants reasonably relied on Lowell’s apparent authority to enter into the transaction and changed their position in reliance on this authority, then plaintiffs are estopped from denying liability for Lowell’s actions. Apparent Authority “The mere creation of an agency for some purpose, does not automatically invest the agent with ‘apparent authority’ to bind the principal without limitation.” Ford v. Unity Hospital, 32 N.Y.2d 464, 469, 299 N.E.2d 659, 664, 346 N.Y.S.2d 238, 244 (1973). It is essential to the creation of apparent authority that words or conduct of the principal are communicated to a third party and these words or conduct give rise to the reasonable belief that the agent possesses authority to enter into a transaction. An agent himself cannot create apparent authority. Consumers Subscription Center, Inc. v. Web Letter Co., 609 F.Supp. 1134, 1139 (E.D.N.Y.1985) (quoting Hallock v. State, 64 N.Y.2d 224, 231, 474 N.E.2d 1178, 1181, 485 N.Y.S.2d 510, 513 (1984)). In this case, Fidelity had no direct contact with the Union and could not in that way have given Lowell apparent authority to sign the agreement. However, apparent authority may arise absent any direct contact between the principal and the third party. “Apparent authority is conferred by the conduct of a principal which justifies a third party’s belief that an agency relationship exists.” E.F. Hutton & Co. v. First Florida Securities, Inc., 654 F.Supp. 1132, 1142 (S.D.N.Y.1987). Where a principal by his voluntary act" }, { "docid": "23398387", "title": "", "text": "New York case, we repeat, concerning the doctrine of actual authority. In addition, the court in Strip Clean held: “There can be no reliance on apparent authority unless the circumstances are such that the third party is entitled to rely thereon.” Id. doctrine of apparent authority does not require that the third party have inquired into the scope of the agent’s authority. In In short, a recovery based on the the apparent authority context, the duty to inquire only arises when “the facts and circumstances are such as to put him on inquiry,” id., the transaction is “extraordinary,” Collision Plan, 63 N.Y.2d at 831, 482 N.Y.S.2d at 253, 472 N.E.2d at 29, or the “novelty” of the transaction alerts the third party to the danger of fraud, General Overseas Films, Ltd. v. Robin Int’l, Inc., 542 F.Supp. 684, 696 (S.D.N.Y.1982), aff'd without opinion, 718 F.2d 1085 (2d Cir.1983). Were this not the rule, such a duty of inquiry would nullify the doctrine of apparent authority in almost every case. Instead, the duty of inquiry amounts to an alternative way of asking whether the third party reasonably relied on the representations of the agent that he possessed authority to bind the principal. See Hallock, 64 N.Y.2d at 231, 485 N.Y.S.2d at 513-14, 474 N.E.2d at 1181-82; see also Whitney v. Citibank, N.A., 782 F.2d 1106, 1115-16 (2d Cir.1986) (“Ordinarily, absent awareness of facts indicating that a partner is acting beyond his real or apparent authority, a third party is not obligated to investigate the matter further or search for some limitation on that partner’s authority.”). 3. Reasonable Reliance We next consider the district court's conclusion that no genuine issues of material fact exist concerning the question whether Herbert reasonably relied on Dixon’s representations of authority. Several pieces of evidence persuade us that this question also should not have been resolved on summary judgment. To begin with, Herbert did not deal directly with Dixon and had never transacted business with him before. Herbert simply received the bond through the mail. Moreover, a five month delay occurred between the awarding of the subcontract," }, { "docid": "23318891", "title": "", "text": "the account purported to direct final credit to the insurance companies makes DSC’s reliance appear all the more reasonable. But a jury could also reasonably find that DSC’s personnel, in the exercise of common judgment without any special training, should have recognized these transactions as suspicious and extraordinary, particularly with respect to the funds of an insurance company. The jury could go on to conclude that DSC’s fiduciary duty to its customer, under the circumstances as a whole, required more than turning a blind eye to these extraordinary transactions in reliance on the unverified word of Frankel. See Collision Plan Unlimited, Inc. v. Bankers Trust Co., 63 N.Y.2d 827, 482 N.Y.S.2d 252, 472 N.E.2d 28, 29 (1984) (finding that a duty to inquire into actual authority may arise where a third party relies on apparent authority for “extraordinary” transactions). Whether DSC’s actions, in the light of what it knew or should have known, properly discharged its duty to process only authorized transactions, or whether in the context of all the circumstances to which we have referred, DSC breached its duty in not making some further inquiry, is a question best left for the jury. See Di Benedetto v. Pan Am World Serv., Inc., 359 F.3d 627, 630 (2d Cir.2004) (“[I]n New York, breach is determined by the jury ... in [all] cases where there arises a real question as to a defendant’s negligence ____”) (internal quotation marks, brackets, and citation omitted). 4 Assuming that DSC did fail in discharging its obligation to verify that the transactions were authorized, we turn to the basis upon which the lower court dismissed the subaccount claims — causation. The lower court held that there was insufficient evidence to support a jury finding that an inquiry of the insurance companies would have revealed the scheme and averted the losses. Almost certainly, according to the court, any inquiry would have gone to Hackney, Atnip, or Jordan, any of whom would have confirmed LNS’s complete authority to act on the Insurance Companies’ behalf with respect to the funds in the subaccounts. It dismissed the Receivers’ arguments to" }, { "docid": "7683839", "title": "", "text": "alerted RAB to the fact that Lowell lacked authority to execute the agreement on Fidelity’s behalf. Fidelity cites as evidence of an “extraordinary transaction” the fact that Lowell crossed out the line provided on the application form for the owner’s signature and signed his own name. However, it was established at the hearing that the alterations to the form were made by an employee of RAB after the form had been submitted, and not by Lowell. Therefore, the appearance of the application form was not extraordinary, and it was reasonable for RAB to believe that Lowell had authority to enter into the agreement. Plaintiffs assert that a duty of reasonable inquiry would have lead RAB and the Union to discover the contractual clause in the management agreement that specifically restricted the authority of the agent. A party invoking the doctrine of apparent authority assumes a duty of reasonable inquiry as to the parameters of the agent's actual authority. Collision Plan Unlimited, Inc. v. Bankers Trust Co., 63 N.Y.2d 827, 830, 472 N.E.2d 28, 29, 482 N.Y.S.2d 252, 253 (1984). However, the authority of an agent cannot be secretly limited by his principal so as to affect a third party dealing with such agent in ignorance of the limitation. Strip Clean Floor Refinishing v. N.Y. Dist. Council No 9 Brotherhood of Painters, 333 F.Supp. 385, 396 (E.D.N.Y.1971). In order for a limitation that is not a standard in the industry to be effective, it must be communicated to third parties with whom the agent deals. Id. at 386. Special or secret instructions or limitations upon the authority of an agent, whose powers would otherwise be coextensive with the business entrusted to him must be communicated to the party with whom he deals, or the principal will be bound to the same extent as if they were not given. Such instructions or limitations are not binding on a third party who deals with the agent in good faith without knowledge of the instructions and in reliance upon the apparent authority with which the principal has clothed him. N.Y.Jur.2d. Agency § 88. Accord" }, { "docid": "2736846", "title": "", "text": "facts are disputed. Summary judgment for World on this point therefore is inappropriate. The Court turns next to plaintiffs’ theory of apparent authority. Apparent authority is “that authority which the principal holds the agent out as possessing, or which he permits the agent to represent that he possesses .... ” Roth v. Ducks Hockey Club, 52 Misc.2d 533, 534, 276 N.Y.S.2d 246, 248 (Dist. Ct. Suffolk County 1966). The doctrine of apparent authority is rooted in that of estoppel; where a third party changes his position in reliance on the reasonable belief that an agent is acting within the scope of his authority, “the principal is estopped to deny that the agent’s act was not authorized.” Masuda v. Kawasaki Dockyard Co., Ltd., 328 F.2d 662, 665 (2d Cir.1964). Apparent authority exists only where “words or conduct of the principal, communicated to a third party ... give rise to the appearance and belief that the agent possesses authority to enter into a transaction.” Hallock v. State of New York, 64 N.Y.2d 224, 231, 474 N.E.2d 1178, 1181, 485 N.Y.S.2d 510, 513 (1984). The existence of apparent authority requires, as well, that the third party “relied upon the misrepresentation of the agent because of some misleading conduct on the part of the principal — not the agent.” Id. (citation omitted). Finally, the third party’s reliance on the appearance of authority must have been reasonable. Id. While a grant of summary judgment as to apparent authority may be appropriate under some circumstances, see Minskoff v. Am. Express Travel Related Servs. Co., Inc., 98 F.3d 703, 708 (2d Cir.1996), “[t]he existence of apparent authority is normally a question of fact, and therefore inappropriate for resolution on a motion for summary judgment,” id. The Court declines to grant summary judgment for either party on the question of apparent authority. Plaintiffs claim that because Nigerian passengers are wary of charter programs, “World actively helped Ritetime advertise and market the Nigeria Flight Service Program in such a manner so as to conceal the charter nature of the flight program.” Pis.’ Opp’n to Def.’s Stat’t of Material Facts" }, { "docid": "10496688", "title": "", "text": "as to who it wanted to be the signatory. Along with a letter dated August 11, 1987, BWIA returned the lease extension signed by Blake. The decision to have Blake sign for BWIA was made by BWIA. Towers should be able to rely on the decision made by BWIA to bind BWIA. Viewed in conjunction with Blake’s deposition, all of the surrounding circumstances indicate that he was empowered by BWIA to bind it to the lease extension. Even if the court accepted BWIA’s proposition that Blake was not actually empowered to enter into the lease extension, the evidence still warrants a finding for Towers under the doctrine of apparent authority. Apparent authority bars a principal from disavowing the transactions of its agent. The New York State Court of Appeals has explained when this doctrine is appropriate: [T]he existence of “apparent authority” depends on the factual showing that the third party relied upon the misrepresentation of the agent because of some misleading conduct on the part of the principal — not the agent. Ford v. Unity Hospital, 32 N.Y.2d 464, 472-73, 346 N.Y.S.2d 238, 244, 299 N.E.2d 669, 664 (1973); see also, Fennell v. TLB Kent Co., 865 F.2d 498, 503 (2d Cir.1989); Chelsea National Bank v. Lincoln Plaza Towers Assoc., 93 A.D.2d 216, 219, 461 N.Y.S.2d 328, 331 (1st Dept.1983), aff'd, 61 N.Y.2d 817, 473 N.Y.S.2d 953, 462 N.E.2d 130 (1984). It must also be established that the third party reasonably relied on the representations put forth. Hallock v. State, 64 N.Y.2d 224, 231, 485 N.Y.S.2d 510, 513, 474 N.E.2d 1178 (1984). The determination of reasonable reliance is: essentially a question of fact. It depends not only on the nature of the contract involved, but the officers negotiating it, the corporation’s usual manner of conducting business, the size of the corporation and the number of its stockholders, the circumstances that give rise to the contract, the reasonableness of the contract, the amounts involved, and who the contracting third party is, to list a few but not all of the relevant factors. Utica Mut. Ins. Co. v. Fireman’s Fund Ins., 613" }, { "docid": "21543788", "title": "", "text": "and the validity of the waiver in the consent order —and indeed, Judge Stanton did examine the merits in denying Antigua’s 60(b) motion. The facts in our record are susceptible of two opposing interpretations. First Fidelity has alleged facts sufficient to show Jacobs’ and Healy’s apparent authority under New York law. See Hallock v. State, 64 N.Y.2d 224, 231, 474 N.E.2d 1178, 1181, 485 N.Y.S.2d 510, 513 (1984) (apparent authority exists where principal’s conduct leads third party reasonably to believe that agent has authority). If Jacobs and Healy acted within their apparent authority in their transactions with the bank, then Antigua would be liable. See Restatement (Second) of Agency § 159 (liability created by actions within apparent authority). However, there is also evidence that First Fidelity mistrusted Jacobs’ and Healy’s bona fides, which raises questions about the reasonableness of First Fidelity’s reliance upon their apparent authority. See Ford v. Unity Hosp., 32 N.Y.2d 464, 472, 299 N.E. 2d 659, 664, 346 N.Y.S.2d 238, 244 (1973) (“One who deals with an agent does so at his peril, and must make the necessary effort to discover the actual scope of authority.”); General Overseas Films, Ltd. v. Robin Int’l, Inc., 542 F.Supp. 684, 690 (S.D.N.Y.1982) (extraordinary nature of transaction should have altered plaintiff to danger of fraud), aff'd, 718 F.2d 1085 (2d Cir.1983); Restatement (Third) of Foreign Relations § 456 comment b (party relying on waiver has burden of showing that person waiving had authority to bind state); Restatement (Second) of Agency § 165 (principal is not liable for agent’s improper actions if third party knows that agent is not acting for principal’s benefit). Thus, it may be that Antigua is the innocent victim of its ambassador’s fraud and the bank’s willful ignorance of the ambassador’s lack of authority. If so, Antigua would retain its sovereign immunity, and the default judgment against it would be void for want of subject matter jurisdiction. On the other hand, Antigua may simply be trying to renege on a loan by disowning its agent who borrowed the money. In that case, the FSIA’s commercial activity exception would" }, { "docid": "23398386", "title": "", "text": "under apparent authority. In Collision Plan Unlimited, Inc. v. Bankers Trust Co., 63 N.Y.2d 827, 830, 482 N.Y.S.2d 252, 253, 472 N.E.2d 28, 29 (1984), the New York Court of Appeals indeed stated in a memorandum opinion: “By invoking the doctrine of apparent authority to justify the propriety of its actions, the bank concomitantly assumed a duty of reasonable inquiry as to [the agent’s] actual perimeter of authority.” The court, however, went on to say: “The mortgage arrangement should have triggered the duty of reasonable inquiry since a gratuitous guarantee by a corporation of a debt of an unrelated corporation is extraordinary.” Collision Plan, 63 N.Y.2d at 831, 482 N.Y.S.2d at 253, 472 N.E.2d at 29 (emphasis added). In Strip Clean Floor Refinishing v. New York Dist. Council No. 9, 333 F.Supp. 385, 396 (E.D. N.Y.1971), the court stated that “one dealing with another known by him to be an agent is bound to inquire as to the extent of the latter’s authority.” To support this proposition, however, the district court cited Sponge Rubber, a New York case, we repeat, concerning the doctrine of actual authority. In addition, the court in Strip Clean held: “There can be no reliance on apparent authority unless the circumstances are such that the third party is entitled to rely thereon.” Id. doctrine of apparent authority does not require that the third party have inquired into the scope of the agent’s authority. In In short, a recovery based on the the apparent authority context, the duty to inquire only arises when “the facts and circumstances are such as to put him on inquiry,” id., the transaction is “extraordinary,” Collision Plan, 63 N.Y.2d at 831, 482 N.Y.S.2d at 253, 472 N.E.2d at 29, or the “novelty” of the transaction alerts the third party to the danger of fraud, General Overseas Films, Ltd. v. Robin Int’l, Inc., 542 F.Supp. 684, 696 (S.D.N.Y.1982), aff'd without opinion, 718 F.2d 1085 (2d Cir.1983). Were this not the rule, such a duty of inquiry would nullify the doctrine of apparent authority in almost every case. Instead, the duty of inquiry amounts" }, { "docid": "23398385", "title": "", "text": "held: “One who deals with an agent does so at his peril, and must make the necessary effort to discover the actual scope of authority.” Ford, 32 N.Y.2d at 472, 346 N.Y.S.2d at 244, 299 N.E.2d at 664 (emphasis added) (citing Sponge Rubber Prods. Co. v. Purofied Down Prods. Corp., 281 A.D. 380, 119 N.Y.S.2d 783 (1st Dep’t 1953), aff'd, 306 N.Y. 776, 118 N.E.2d 479 (1954)). As the quoted language indicates, this proposition refers to the doctrine of actual, not apparent, authority. In fact, the case Ford cited, Sponge Rubber, only dealt with the question of actual authority. This interpretation of Ford is also supported by the language directly following the above quotation: “Upon failure to properly determine the scope of authority,” you then consider the “existence of ‘apparent authority.’ ” Ford, 32 N.Y.2d at 472-73, 346 N.Y.S.2d at 244, 299 N.E.2d at 664. The same can be said of the other cases cited by Continental. They also do not impose a duty of inquiry as a prerequisite to asserting a cause of action under apparent authority. In Collision Plan Unlimited, Inc. v. Bankers Trust Co., 63 N.Y.2d 827, 830, 482 N.Y.S.2d 252, 253, 472 N.E.2d 28, 29 (1984), the New York Court of Appeals indeed stated in a memorandum opinion: “By invoking the doctrine of apparent authority to justify the propriety of its actions, the bank concomitantly assumed a duty of reasonable inquiry as to [the agent’s] actual perimeter of authority.” The court, however, went on to say: “The mortgage arrangement should have triggered the duty of reasonable inquiry since a gratuitous guarantee by a corporation of a debt of an unrelated corporation is extraordinary.” Collision Plan, 63 N.Y.2d at 831, 482 N.Y.S.2d at 253, 472 N.E.2d at 29 (emphasis added). In Strip Clean Floor Refinishing v. New York Dist. Council No. 9, 333 F.Supp. 385, 396 (E.D. N.Y.1971), the court stated that “one dealing with another known by him to be an agent is bound to inquire as to the extent of the latter’s authority.” To support this proposition, however, the district court cited Sponge Rubber, a" }, { "docid": "14457665", "title": "", "text": "by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other’s manifestations to such third persons.” Restatement (Second) of Agency § 8. “Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction.” Ben-Reuven v. Kidder, Peabody & Co., 241 A.D.2d 504, 661 N.Y.S.2d 28, 29 (1997) (quoting Standard Funding Corp. v. Lewitt, 89 N.Y.2d 546, 656 N.Y.S.2d 188, 678 N.E.2d 874, 877 (1997)); accord Doxsee Sea Clam Co., 13 F.3d at 553- 54, The existence of apparent authority depends on some conduct by the principal “which reasonably give[s] the appearance that the agent has authority to conduct a particular transaction.” Doxsee Sea Clam Co., 13 F.3d at 554 (citing Greene v. Hellman, 51 N.Y.2d 197, 433 N.Y.S.2d 75, 412 N.E.2d 1301 (1980)); accord Hallock v. State, 64 N.Y.2d 224, 485 N.Y.S.2d 510, 474 N.E.2d 1178, 1181 (1984). Where a third party reasonably relies on such acts, the principal may be bound by the conduct of his agent. Doxsee Sea Clam Co., 13 F.3d at 554. To be sure, the Banks never communicated directly with Affiliated. However, under New York law, apparent authority does not require actual contact between the principal, here the Banks, and the third party, here Affiliated. See General Motors Acceptance Corp. v. Finnegan, 156 Misc.2d 253, 592 N.Y.S.2d 570, 572 (1992). Rather, it requires the third party only to demonstrate some manifestation attributable to the principal. Were the law otherwise, the benefits of the doctrine of apparent authority would be severely diminished because a lack of contact between the principal and third party often leaves the third party with little choice but to deal with the purported agent. The manifestation giving rise to T & N’s apparent authority in the instant matter arises from the facts that: (i) the Banks allowed T & N (through Andina) to set the terms of their initial inclusion as additional insureds to the Affiliated Policy; (ii)" }, { "docid": "23398377", "title": "", "text": "is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis added). Finally, and of special import to this case, “the substantive law will identify which facts are material ” in a given case. Id. (emphasis added). A. New York Law of Apparent Authority The New York Court of Appeals has summarized the law of apparent authority in the following manner: Upon failure to properly determine the scope of authority, and in the face of damages resulting from an agent’s misrepresentations, “apparent authority” is not automatically available to the injured third party to bind the principal. Rather, the existence of “apparent authority” depends upon a factual showing that the third party relied upon the misrepresentations of the agent because of some misleading conduct on the part of the principal — not the agent. Ford v. Unity Hospital, 32 N.Y.2d 464, 472-73, 346 N.Y.S.2d 238, 244, 299 N.E.2d 659, 664 (1973) (citations omitted). See also Fennell v. TLB Kent Co., 865 F.2d 498, 503 (2d Cir.1989) (apparent authority requires “ ‘words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction’ ” (quoting Hallock v. State, 64 N.Y.2d 224, 231, 485 N.Y.S.2d 510, 513, 474 N.E.2d 1178, 1181 (1984))). From this authority we glean several propositions of New York law critical to the resolution of this appeal. Two scenarios establish the bookends of New York law on apparent authority. At one end sits the agent who possesses actual authority to bind the principal to third parties, a situation not present here given Continental’s revocation of Dixon’s power of attorney five months before the bond in question was issued. At the other end sits the agent who has no actual authority and perpetrates a fraud on a third party independent of any responsibility of the principal. Such a situation would exist, for instance, if the agent stole a principal’s indi-cia of authority and" }, { "docid": "23398379", "title": "", "text": "falsely represented to a third party that he had authority to bind the principal. Under this scenario, the principal would not be liable to the third party, because the apparent authority would not be “traceable” to him. Ford, 32 N.Y.2d at 473, 346 N.Y.S.2d at 244, 299 N.E.2d at 664 (citation omitted); H. Michaelyan, Inc. v. N.J. Guaranty & Plate Glass Ins. Co., 144 Misc. 298, 301, 258 N.Y.S. 594, 596 (Sup.Ct.1930) (“The principal, accordingly, is liable only for such acts of his agent as he has ostensibly authorized — not for all their possible counterfeits.”), aff'd, 234 A.D. 855, 254 N.Y.S. 1004 (1st Dep’t 1931). Apparent authority lies between these two extremes. To recover on this theory the third party must establish two facts: (1) the principal “was responsible for the appearance of authority in the agent to conduct the transaction in question,” Ford, 32 N.Y.2d at 473, 346 N.Y.S.2d at 244, 299 N.E.2d at 664 (citation omitted), and (2) the third party reasonably relied on the representations of the agent, Hallock, 64 N.Y.2d at 231, 485 N.Y.S.2d at 513, 474 N.E.2d at 1181. “The existence of apparent authority is a question of fact.” Stanford v. Kuwait Airways Corp., 648 F.Supp. 1158, 1162 (S.D.N.Y.1986); but see Karavos Compania Naviera S.A v. Atlantica Export Corp., 588 F.2d 1, 8 n. 15 (2d Cir.1978) (treating apparent authority as a mixed question of law and fact in the context of a finding by the court pursuant to Fed.R. Civ.P. 52(a)). B. Herbert’s Motion for Summary Judgment Having said that, we progress to the first question raised on appeal: Should the district court have granted summary judgment in favor of Herbert? We agree with Continental that it should not have done so. 1. Responsibility for Dixon’s Possession of Indicia of Authority We do not concur with the district court’s conclusion that Continental was responsible as a matter of law for Dixon’s possession of a Continental power of attorney. The district court found it “of no moment that Continental attempted, albeit unsuccessfully, to retrieve the Power of Attorney statement from Dixon,” citing section 130" }, { "docid": "10496693", "title": "", "text": "unusual, thereby putting the third party on notice to further inquire, New York law does not require investigation beyond reliance on the action of the principal and agent. Herbert Cons. Co., 931 F.2d at 996. In explaining why it came to this conclusion, the Second Circuit noted: Were this not the rule, such a duty of inquiry would nullify the doctrine of apparent authority in almost every case. Instead, the duty of inquiry amounts to an alternative way of asking whether the third party reasonably relied on the representations of the agent that he possessed authority to bind the principal. Id. In point of fact, this analysis is consistent with the very law relied upon by BWIA. Accurately quoting from the New York State Court of Appeals, BWIA states, “[o]ne who deals with an agent does so at his peril, and must make the necessary effort to discover the actual scope of authority” (Defendant’s Post-Trial Brief, p. 29, quoting, Ford, 32 N.Y.2d at 472-473, 346 N.Y.S.2d at 243-245, 299 N.E.2d at 663-664). However, the court went on to say that “upon failure to properly determine the scope of authority” you then consider the doctrine of apparent authority. Ford, 32 N.Y.2d at 472-473, 346 N.Y.S.2d at 243-245, 299 N.E.2d at 663-664. The clear implication is that in Ford, the court when discussing inquiries, was addressing an actual authority question. See, Herbert Cost. Co., 931 F.2d at 995. Even if Towers had engaged in the investigation BWIA suggests, there is very little chance that Towers would ever have found the policy statement, no matter how extensive its inquiry was. Initially, Blake stated that he was specifically authorized to enter into the agreement. Thus, it is clear from his deposition that he was unaware of the limitation of his authority claimed by Towers. Chong’s deposition said that there were no copies of the policy maintained in the New York office, that it was not discussed with any BWIA people working in New York, and that he did not ever have any occasion to use the guidelines (Exh. 95, pp. 95-96). Cook, who replaced" }, { "docid": "23398388", "title": "", "text": "to an alternative way of asking whether the third party reasonably relied on the representations of the agent that he possessed authority to bind the principal. See Hallock, 64 N.Y.2d at 231, 485 N.Y.S.2d at 513-14, 474 N.E.2d at 1181-82; see also Whitney v. Citibank, N.A., 782 F.2d 1106, 1115-16 (2d Cir.1986) (“Ordinarily, absent awareness of facts indicating that a partner is acting beyond his real or apparent authority, a third party is not obligated to investigate the matter further or search for some limitation on that partner’s authority.”). 3. Reasonable Reliance We next consider the district court's conclusion that no genuine issues of material fact exist concerning the question whether Herbert reasonably relied on Dixon’s representations of authority. Several pieces of evidence persuade us that this question also should not have been resolved on summary judgment. To begin with, Herbert did not deal directly with Dixon and had never transacted business with him before. Herbert simply received the bond through the mail. Moreover, a five month delay occurred between the awarding of the subcontract, when a performance bond was requested, and the procurement of the performance bond. According to Continental, it is unusual for such bonds to be approved and issued months after the contract date. In addition, it remains uncertain whether the bond was regular on its face. Continental claims that the corporate seal on the bond was not its own. The financial statement Dixon attached to the bond was at least two years old. Finally, the parties disagree on the relevant custom of the construction industry on this issue. Herbert asserts that “[i]t is the custom and practice in the construction industry and insurance industry for an obligee on a performance or payment bond, such as Herbert, to not contact the surety on that bond to verify the authority of the individual broker or agent who executed that bond on the surety’s behalf.” In its Rule 3(g) statement, Continental responded that “[tjhere is no such ‘custom and practice in the construction industry and insurance industry,’ ” and indicated that certain companies “routinely communicate with the surety to" }, { "docid": "23398378", "title": "", "text": "Fennell v. TLB Kent Co., 865 F.2d 498, 503 (2d Cir.1989) (apparent authority requires “ ‘words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction’ ” (quoting Hallock v. State, 64 N.Y.2d 224, 231, 485 N.Y.S.2d 510, 513, 474 N.E.2d 1178, 1181 (1984))). From this authority we glean several propositions of New York law critical to the resolution of this appeal. Two scenarios establish the bookends of New York law on apparent authority. At one end sits the agent who possesses actual authority to bind the principal to third parties, a situation not present here given Continental’s revocation of Dixon’s power of attorney five months before the bond in question was issued. At the other end sits the agent who has no actual authority and perpetrates a fraud on a third party independent of any responsibility of the principal. Such a situation would exist, for instance, if the agent stole a principal’s indi-cia of authority and falsely represented to a third party that he had authority to bind the principal. Under this scenario, the principal would not be liable to the third party, because the apparent authority would not be “traceable” to him. Ford, 32 N.Y.2d at 473, 346 N.Y.S.2d at 244, 299 N.E.2d at 664 (citation omitted); H. Michaelyan, Inc. v. N.J. Guaranty & Plate Glass Ins. Co., 144 Misc. 298, 301, 258 N.Y.S. 594, 596 (Sup.Ct.1930) (“The principal, accordingly, is liable only for such acts of his agent as he has ostensibly authorized — not for all their possible counterfeits.”), aff'd, 234 A.D. 855, 254 N.Y.S. 1004 (1st Dep’t 1931). Apparent authority lies between these two extremes. To recover on this theory the third party must establish two facts: (1) the principal “was responsible for the appearance of authority in the agent to conduct the transaction in question,” Ford, 32 N.Y.2d at 473, 346 N.Y.S.2d at 244, 299 N.E.2d at 664 (citation omitted), and (2) the third party reasonably relied on the representations of the agent, Hallock, 64 N.Y.2d" }, { "docid": "23318890", "title": "", "text": "of funds into DSC accounts the insurance companies knew were established and controlled by Frankel. See Standard Funding Corp. v. Lewitt, 89 N.Y.2d 546, 656 N.Y.S.2d 188, 678 N.E.2d 874, 877 (1997) (“[A]pparent authority [is created by] words or conduct of the principal ... that give rise to the appearance and belief that the agent possesses authority to enter into a transaction.”) (emphasis in original, quotation marks omitted). Generally, a third party need not seek assurances of actual authority where it reasonably relies on the appearance of authority. See C.E. Towers Co. v. Trinidad & Tobago (BWIA Intern.) Airways Corp., 903 F.Supp. 515, 523 (S.D.N.Y.1995) (“Under New York law, an agent’s authority may be actual or apparent.”); Marfia v. T.C. Ziraat Bankasi, N.Y. Branch, 100 F.3d 243, 251 (2d Cir.1996) (explaining that where there is apparent authority, “the principal is estopped to deny that the agent’s act was not authorized”). This conduct continued despite the insurance companies’ knowledge that the funds were being redeemed out of the accounts by LNS. That the redemption instructions on the account purported to direct final credit to the insurance companies makes DSC’s reliance appear all the more reasonable. But a jury could also reasonably find that DSC’s personnel, in the exercise of common judgment without any special training, should have recognized these transactions as suspicious and extraordinary, particularly with respect to the funds of an insurance company. The jury could go on to conclude that DSC’s fiduciary duty to its customer, under the circumstances as a whole, required more than turning a blind eye to these extraordinary transactions in reliance on the unverified word of Frankel. See Collision Plan Unlimited, Inc. v. Bankers Trust Co., 63 N.Y.2d 827, 482 N.Y.S.2d 252, 472 N.E.2d 28, 29 (1984) (finding that a duty to inquire into actual authority may arise where a third party relies on apparent authority for “extraordinary” transactions). Whether DSC’s actions, in the light of what it knew or should have known, properly discharged its duty to process only authorized transactions, or whether in the context of all the circumstances to which we have" }, { "docid": "7683838", "title": "", "text": "must determine the extent of Cooper Hill’s apparent authority, Fidelity cannot claim ignorance of the usual course of business in New York City. See Columbia Broadcast Systems Inc. v. Stokely-Van Camp, Inc., supra, 522 F.2d at 376. (“a principal say in Indiana, who does business through an advertising agency on Madison Avenue, can ordinarily expect his agency to do business in accordance with the usages in New York”). 2. Duty of Inquiry Plaintiffs further assert that defendants failed in their duty of reasonable inquiry. One who deals with an agent does so at his peril, and must make necessary effort to discover the actual scope of the agent’s authority. Consumers Subscription Center, Inc. v. Web Letter Co., supra, 609 F.Supp. at 1139. A party claiming reliance on an agent’s apparent authority must not fail to heed warnings or inconsistent circumstances. General Overseas Films, Ltd. v. Robin Int’l Inc., 542 F.Supp. 684, 695 (S.D.N.Y.1982), aff'd without opinion, 718 F.2d 1085 (2d Cir.1983). In the instant case, there were no warnings or inconsistent circumstances which would have alerted RAB to the fact that Lowell lacked authority to execute the agreement on Fidelity’s behalf. Fidelity cites as evidence of an “extraordinary transaction” the fact that Lowell crossed out the line provided on the application form for the owner’s signature and signed his own name. However, it was established at the hearing that the alterations to the form were made by an employee of RAB after the form had been submitted, and not by Lowell. Therefore, the appearance of the application form was not extraordinary, and it was reasonable for RAB to believe that Lowell had authority to enter into the agreement. Plaintiffs assert that a duty of reasonable inquiry would have lead RAB and the Union to discover the contractual clause in the management agreement that specifically restricted the authority of the agent. A party invoking the doctrine of apparent authority assumes a duty of reasonable inquiry as to the parameters of the agent's actual authority. Collision Plan Unlimited, Inc. v. Bankers Trust Co., 63 N.Y.2d 827, 830, 472 N.E.2d 28, 29, 482" } ]

[ { "docid": "15081667", "title": "", "text": "with others in the ward. Other prisoners had complained of appellant’s bothering them when they preferred to be let alone. Admittedly, the June incident involved a direct disobedience of an order to return to his bed when he and another prisoner were disturbing others in the ward. Appellant assumes that practice of his newly acquired faith permits violation of prison discipline. Such assumption is basically incorrect. Sostre v. McGinnes, 2 Cir., 334 F.2d 906. See also, Barkin, The Emergence of Correctional Law and the Awareness of the Rights of the Convicted, 45 Neb.L.Rev. 669, at 682-84. Freedom of religion is recognized as within the proper exercise of a federal constitutional right for prisoners. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030; 20 Rutgers L.Rev. 538 (1966). However, involved is the familiar problem of alleged personal freedoms clashing with powers that govern. Freedom of religion can never mean freedom to interfere with the peaceful rights of others, or freedom to flagrantly disregard reasonable rules of conduct in or out of prison. Cf. Desmond v. Blackwell, M.D.Pa.1964, 235 F. Supp. 246. As early as 1878 Chief Justice Waite said if “professed doctrines of religious belief [are made] superior to the law of the land [it would] in effect * * * permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” Reynolds v. United States, 98 U.S. 145, 166-167, 25 L.Ed. 244. Judgment affirmed. . The court asked the parties to present evidence on the following questions: “(1) Are security officers or other Medical Center personnel harassing, intimidating or otherwise discriminating against petitioner because of his race or relgion (Orthodox Eeligion of Islam) ? “(2) Have security officers or other Medical Center personnel in the past harassed, intimidated, or otherwise discriminated against petitioner because of his race or religion ? “(3) Have personnel of the Medical Center conspired or are they now conspiring to discriminate against petitioner or to deprive petitioner of any of his Constitutional rights? “(4) Has the administration of the Medical Center in the past refused to" } ]

[ { "docid": "19984230", "title": "", "text": "as that doctrine has developed in the writings of the petitioner over the past three years, together with the violent and raucous tone of its services at the Atlanta Penitentiary, indicate that the “Church” has totally failed the “trial run” test which it received in the Northern District of Georgia three years ago. The professed belief of Mr. Theriault that he is the second Messiah (Paratestament, Theriault, Chap. 7, V. 1-114) appears to this Court to be insincere and, like the rest of the actions of the petitioner, are “essentially political, sociological and philosophical”. The professed views of Mr. Theriault that he “would have established a new World order” with Harry W. Theriault as the head of the Order (see generally Paratestament, Theriault) supra are, in the opinion of the Court, more closely akin to the megalomania of Adolph Hitler and the Nazis or Charles Manson and his “family” than any “belief . . . that ‘occupies a place’ parallel to that filled by the orthodox belief in God”. The First Amendment to the United States Constitution states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof”. In interpreting this Amendment, the Courts have recognized with respect to prisoners’ religious freedom that: “Although the law acknowledges a prisoner’s ‘forum of conscience’ deserving of protection, Remmers v. Brewer, 494 F.2d 1277 (8th Cir., 1974) it also recognizes that a person, in or out of prison, may not, in the name of religion, become a law unto himself. As we said in Evans v. Ciccone, [377 F.2d 4 (8th Cir. 1967)]; ‘Freedom of religion can never mean . freedom to flagrantly disregard reasonable rules of conduct in or out of prison’. 377 F.2d at 6.” (Emphasis supplied.) Proffitt v. Ciccone, 506 F.2d 1020 (1974). “ ‘It has never been held that upon entering a prison one is entirely bereft of all his civil rights and forfeits every protection of the law.’ ” Sewell v. Pegelow, 291 F.2d 196, 198 (4 Cir., 1961). See also Pierce v. La Vallee, 293 F.2d 233 (2 Cir. 1961)." }, { "docid": "19984231", "title": "", "text": "States Constitution states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof”. In interpreting this Amendment, the Courts have recognized with respect to prisoners’ religious freedom that: “Although the law acknowledges a prisoner’s ‘forum of conscience’ deserving of protection, Remmers v. Brewer, 494 F.2d 1277 (8th Cir., 1974) it also recognizes that a person, in or out of prison, may not, in the name of religion, become a law unto himself. As we said in Evans v. Ciccone, [377 F.2d 4 (8th Cir. 1967)]; ‘Freedom of religion can never mean . freedom to flagrantly disregard reasonable rules of conduct in or out of prison’. 377 F.2d at 6.” (Emphasis supplied.) Proffitt v. Ciccone, 506 F.2d 1020 (1974). “ ‘It has never been held that upon entering a prison one is entirely bereft of all his civil rights and forfeits every protection of the law.’ ” Sewell v. Pegelow, 291 F.2d 196, 198 (4 Cir., 1961). See also Pierce v. La Vallee, 293 F.2d 233 (2 Cir. 1961). This statement was cited with approval in the case of Brown v. Peyton, 437 F.2d 1228 (4th Cir., 1971). Judge Winter, writing for the majority of the Three Judge Panel and also citing Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964) went on to affirm: “These cases clearly establish that a prisoner does not shed his first amendment rights at the prison portals.” In Brown, the majority pointed out that: “While first amendment rights are ‘preferred’ rights, nonetheless, they are not unlimited. The state may restrict religious acts if it can be shown that they pose ‘some substantial threat to public safety, peace or order,’ and that there is a ‘compelling state interest in the * * * regulation.’ Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963).” Judge Winter pointed out certain State interests upon which prison authorities may justify repression or restriction of First Amendment rights of prisoners. They included: 1. Prison officials have to confine dangerous men in unpleasant circumstances. 2." }, { "docid": "8032689", "title": "", "text": "v. La Vallee, 293 F.2d 233, 235 (2 Cir. 1961). See Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Pres. Ch., 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969). But it continuously has been recognized that there are certain limitations to religious freedom. While freedom to believe is absolute, the exercise of religion is not. The exercise is not, for example, to be “injurious to the equal rights of others”. Davis v. Beason, 133 U.S. 333, 342, 10 S.Ct. 299, 300, 33 L.Ed. 637 (1890). “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” Reynolds v. United States, 98 U.S. 145, 166, 25 L.Ed. 244 (1879). “And neither rights of religion nor rights of parenthood are beyond limitation.” Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). Mr. Justice Roberts succinctly expressed the governing principles in Cantwell v. Connecticut, supra, 310 U.S. at 303-304, 60 S.Ct. at 903: “Thus the Amendment embraces two concepts, — freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. * * * In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.” See Holdridge v. United States, 282 F.2d 302, 311 (8 Cir. 1960). These precepts do not stop short in their application at a prison’s doors. Fundamental rights follow the prisoner through the walls which incarcerate him but always with appropriate limitations. In Evans v. Ciccone, 377 F.2d 4, 6 (8 Cir. 1967) this court noted specifically, “Freedom of religion is recognized as within the proper exercise of a federal constitutional right for prisoners.” However, in the same opinion, Judge Lay, in speaking for the court, observed that that petitioner’s assumption that “practice of his newly acquired faith permits violation of prison discipline * * is basically incorrect. * * * Freedom of religion can never" }, { "docid": "22981574", "title": "", "text": "significant questions of interference with the practice of religion, discrimination in the practice of religion, and discrimination on the basis of religion were raised. The Sewell Court declared: “It is beyond dispute that certain rights and privileges of citizenship are withdrawn from prisoners, but it has never been held that upon entering a prison one is entirely bereft of all of his civil rights and forfeits every protection of the law.” (291 F.2d at 198) The court reversed the order of dismissal and remanded for a hearing on the merits, citing the statement of United States, ex rel. Marcial v. Fay, 247 F.2d 662, 669 (2 Cir., 1957) cert, den., 355 U.S. 915, 78 S.Ct. 342, 2 L.Ed.2d 274, for the proposition, “We must not play fast and-loose with basic constitutional rights in the interest of administrative efficiency.” In the Pierce case, involving a similar complaint, the court noted the extraordinary character of a complaint of religious persecution: “Whatever may be the view with regard to ordinary problems of prison discipline, however, we think that a charge of religious persecution falls in quite a different category. See Marsh v. State of Alabama, 326 U.S. 501, [66 S.Ct. 276, 90 L.Ed. 265] Follett v. Town of McCormick, S. C., 321 U.S. 573, [64 S.Ct. 717, 88 L. Ed. 938] Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, [63 S.Ct. 870, 87 L.Ed. 1292]. As the Supreme Court has there pointed out, freedom of religion and of conscience is one of the fundamental ‘preferred’' freedoms guaranteed by the Constitution. We must approach decision with that admonition in mind.” (293 F.2d at 235). The court reversed the judgment of the district court and ordered a hearing on the merits. In Fulwood v. Clemmer, 206 F.Supp. 370 (D.C.1962), the court found that even where the prisoner had committed the offense of proclaiming religiously-derived racist doctrines in an inflammatory setting, the solitary confinement and exclusion of the prisoner for more than two years from the general prison population, the denial of usual recreative and rehabilitative facilities, the denial of the exercise of his religion while" }, { "docid": "1347693", "title": "", "text": "Arabic materials was dismissed without prejudice on the basis of evidence submitted with defendants’ answer which indicated that the denial of religious materials was the product of misunderstanding, and that plaintiff would be permitted to obtain them and hold prayer meetings in the future. Damages for previous denials were held unavailable because plaintiff had failed to allege diversity of citizenship. Plaintiff has appealed. We reverse and remand for further proceedings. I “[I]t has never been held that upon entering a prison one is entirely bereft of all of his civil rights and forfeits every protection of the law.” Sewell v. Pegelow, 291 F.2d 196, 198 (4 Cir. 1961). See also Pierce v. La Vallee, 293 F.2d 233 (2 Cir. 1961). This statement was made in a case in which state prisoners were granted the right to seek to establish' that they were subjected to discriminatory treatment in prison, including prohibition of the practice of their religion and the wearing of religious symbols, because they were Muslims. We decided that if the evidence sustained their allegations they were entitled to redress. The correctness of the decision in Sewell was fully established by Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964). In Cooper it was held that an inmate of a state prison who alleged that he was denied permission to purchase certain religious publications and denied other privileges enjoyed by other prisoners solely because of his religious beliefs alleged a cause of action immune to summary dismissal. These cases clearly establish that a prisoner does not shed his first amendment rights at the prison portals. While Sewell, if read narrowly, may be treated as an equal protection case, Cooper certainly proceeds on the broader basis of the first amendment. Since Cooper, it has been increasingly recognized that prisoners retain substantial first amendment rights despite conviction and incarceration. See, e. g., Barnett v. Rodgers, 133 U.S.App.D.C. 296, 410 F.2d 995 (1969); Long v. Parker, 390 F.2d 816 (3 Cir. 1968); Jackson v. Godwin, 400 F.2d 529 (5 Cir. 1968). Persons not incarcerated have the right to believe" }, { "docid": "2368140", "title": "", "text": "safety, peace or order.” 374 U.S. at 403, 83 S.Ct. at 1793. The court concluded that a “compelling state interest” must justify any “substantial infringement of [the] appellant’s First Amendment right,” (374 U.S. at 406, 83 S.Ct. at 1795), and that, as noted above, the traditional measure for that interest required a substantial threat to public safety, peace, or order. It further commented that the compelling interest test would be met only if the religious practice created an “administrative problem of such magnitude” that it rendered proper statutory regulation unworkable. 374 U.S. at 409, 83 S.Ct. at 1796. (Emphasis added.) This essential “compelling state interest” formula has been repeatedly confirmed. In Braunfeld v. Brown, 366 U. S. 599, 607, 81 S.Ct. 1144, 1148, 6 L.Ed. 2d 563 (1961), the court declared: “If the purpose or effect of a law is to impede the observance of one or all religions . . . that law is constitutionally invalid even though the burden [on the free exercise of religion] may be characterized as being only indirect.” In Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct.'315, 323, 89 L.Ed. 430 (1945), the court emphasized that, “[o]nly the gravest abuses endangering paramount interests, give occasion for permissible limitation” on First Amendment rights. These broad principles apply to the religious rights of prisoners: “The state may restrict religious acts if it can be shown that they pose ‘some substantial threat to public safety, peace or order,’ and that there is a ‘compelling state interest in the . . . regulation.’ [P]laintiff’s desire to practice his religion may be restricted only upon a convincing showing that paramount state interests so require.” Brown v. Peyton, 437 F.2d 1228, 1231 (4th Cir. 1971) (rights of Black Muslim prisoner). See generally Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); Pierce v. LaVallee, 293 F. 2d 233 (2d Cir. 1961); Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961). Such cases must, of course, be read against the Supreme Court’s acknowledgement that “ [1] awful incarceration brings about the necessary withdrawal or limitation of" }, { "docid": "2905758", "title": "", "text": "light of its equally oft-cited contrapositive, that “A prisoner retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law”, Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir. 1944), cert. denied, 325 U.S. 887, 65 S.Ct. 1568, 89 L.Ed. 2001 (1945). Since the challenged total ban does deprive prisoners of all opportunity to write letters to the press, we must, as a threshold matter, determine whether one’s freedom to write to the press survives his incarceration. While to our knowledge no court has addressed the precise question, many have concluded that various other First Amendment rights survive. The right to free exercise of religion has given rise to most of the litigation. In Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964), the Supreme Court held that a prisoner stated a cause of action in alleging that he was denied permission to purchase certain religious publications and was, because of his religious beliefs, denied other privileges enjoyed by other prisoners. While Cooper could conceivably be thought to be grounded in either free exercise of religion or equal protection, it has consistently been interpreted as proceeding on free exercise grounds. E. g., Brown v. Peyton, 437 F.2d 1228, 1230 (4th Cir. 1971); Walker v. Blackwell, 411 F.2d 23, 24 (5th Cir. 1969); Long v. Parker, 390 F.2d 816, 820 n. 17 (3d Cir. 1968). Indeed, the language of these cases suggests the survival of First Amendment rights generally. 437 F.2d at 1231; 411 F.2d at 24. Similar language was used in an opinion holding that prisoners had the right to receive Fortune News, a (non-religious) newsletter published by former inmates and often critical of prison authorities. Fortune Society v. McGinnis, 319 F.Supp. 901, 904 (S.D.N.Y.1970). We need not adopt the broad principle that a prisoner retains all First Amendment rights to conclude, as we do, that he retains the right to send letters to the press concerning prison matters. In so concluding, we rely primarily on the fact that the condition of our prisons is an important" }, { "docid": "11253212", "title": "", "text": "has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the State.” See Ruffin v. Commonwealth, 62 Va. (21 Gratt.) 790, 796 (1871) quoted in Note, 110 U. of P. Law Rev. 985 (1961-62). See also People v. Russell, 245 Ill. 268, 91 N.E. 1075 (1827) where the Supreme Court of Illinois added this thought: “there follows, from the judgment (of conviction) a loss of civil rights, * * *. He has become an alien in his own country * * . See e.g.. State of Oregon ex rel. Sherwood v. Gladden, 240 F.2d 910 (9th Cir. 1957); United States ex rel. Atterbury v. Ragen, 237 F.2d 953 (7th Cir. 1956); Pierce v. La Vallee, 293 F.2d 233 (2nd Cir. 1961) and cases cited therein. . Ortega v. Ragen, 216 F.2d 561 (7th Cir. 1954), cert. den., 349 U.S. 940, 75 S.Ct. 786, 99 L.Ed. 1268 (1955); United States ex rel. Vraniak v. Randolph, 161 F.Supp. 553 (E.D.Ill.1958), aff’d, 261 F.2d 234 (7th Cir. 1958), cert. den. 359 U.S. 949, 79 S.Ct. 733, 3 L.Ed.2d 681 (1959). . Cf. Sostre v. McGinnes, 334 F.2d 906 (2nd Cir. 1964), cert. den. 379 U.S. 892, 85 S.Ct. 168, 13 L.Ed.2d 96 (1964). Childs v. Pegelow, 321 F.2d 487 (4th Cir. 1963). . See Kirby v. Thomas, 336 F.2d 462 (6th Cir. 1964) and eases cited therein. . Cf. Pierce v. La Vallee, 293 F.2d 233, 235 (2nd Cir. 1961); “Whatever may be the view with regard to ordinary problems of prison discipline, however, we think that a charge of religious persecution falls in quite a different category.” United States ex rel. Hancock v. Pate, 223 F.Supp. 202, 205 (N.D.Ill.1963): \" * * * it goes to the more basic question of how long he is to be deprived of his liberty”, rather than the freedom of state institutions to maintain discipline. Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961); Cooper v. Pate, 378 U.S." }, { "docid": "20961758", "title": "", "text": "to when the prisoner is to be released is totally within his discretion and not subject to the intervention of the federal courts. Apart from the instant case, this Court does not agree with the Warden’s comprehensive interpretation of the internal discipline defense. That doctrine is not without limitation. The Seventh Circuit has held that a suit brought under the Civil Rights Act alleging a warden’s failure to cause medical attention to be given to a wounded prisoner states a cause of action against the prison official. Coleman v. Johnston,. 247 F.2d 273 (7th Cir. 1957). Similarly, the late Judge Clark in Pierce v. La Vallee, 293 F.2d 233 (2d Cir. 1961), enunciated other situations which would warrant federal court intervention: “Whatever may be the view with regard to ordinary problems of prison discipline, however, we think that a charge of religious persecution falls in quite a different category. * * * [Fjreedom of religion and of conscience is one of the fundamental ‘preferred’ freedoms guaranteed by the Constitution. We must approach decision with that admonition in mind.” 293 F.2d at 235. The Pierce court went on to hold that a complaint by a prisoner alleging that he had been deprived of good time and placed in solitary confinement because he held certain religious convictions did not fall to the prison discipline doctrine but rather stated a cause of action which a federal court must entertain. The special position of religious freedom as a constitutional right excepted from the internal discipline defense is also apparent from the decision in Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961), in which the Fourth Circuit reversed a district court's dismissal of complaints alleging religious discrimination at the United States Reformatory at Lorton, Virginia, an institution maintained for prisoners sentenced by courts of the District of Columbia. Chief Judge So-beloff, writing for the court, recognized that there is a limit to the prison discipline doctrine: “* * * [I]t has never been held that upon entering a pi-ison one is entirely bereft of all of his civil rights and forfeits every protection of" }, { "docid": "9912863", "title": "", "text": "at 564 n. 11, 98 S.Ct. 855. Indeed, one case had recognized that pretrial detainees have a First Amendment right in their correspondence. Id. None of these cases, however, had dealt specifically with the rights of convicted prisoners in their mail, and thus the Court found that the particular constitutional right at issue had not yet been declared. Following the rationale of Navarette, it would appear that the specific right at issue here — that of a prisoner to refuse an order requiring him to handle foodstuffs forbidden by his religion — was not “clearly established” in October 1972. While Cooper noted the existence of a prisoner’s right to be free from punishment on account of his religious beliefs, it also noted that a prisoner is subject to various curtailments of his freedom to exercise his beliefs. 482 F.2d at 521. Indeed, courts in other circuits had at the time declared that the practice of one’s religious faith does not permit violation of prison discipline. Evans v. Ciccone, 377 F.2d 4 (8th Cir. 1967); Sostre v. McGinnis, 334 F.2d 906, 908 (2d Cir.), cert, denied, 379 U.S. 892, 85 S.Ct. 168, 13 L.Ed.2d 96 (1964). In Evans a federal prisoner of the Islamic faith had been disturbing others by religious discussion and was punished for direct disobedience of an order to return to bed. The court held that he had not suffered discrimination on account of his religion, noting that “[fjreedom of religion can never mean . . . freedom to flagrantly disregard reasonable rules of conduct in or out of prison.” 377 F.2d at 6. We need not here comment on the correctness of these decisions or whether they would necessarily be followed today. It is sufficient that we note their existence at the time of the incident at issue, for, coupled with the absence of decisions which could be said to declare such a right, they support the proposition that no such right was “clearly established” at the time. “Because they could not reasonably have been expected to be aware of a constitutional right that had not yet" }, { "docid": "20961759", "title": "", "text": "admonition in mind.” 293 F.2d at 235. The Pierce court went on to hold that a complaint by a prisoner alleging that he had been deprived of good time and placed in solitary confinement because he held certain religious convictions did not fall to the prison discipline doctrine but rather stated a cause of action which a federal court must entertain. The special position of religious freedom as a constitutional right excepted from the internal discipline defense is also apparent from the decision in Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961), in which the Fourth Circuit reversed a district court's dismissal of complaints alleging religious discrimination at the United States Reformatory at Lorton, Virginia, an institution maintained for prisoners sentenced by courts of the District of Columbia. Chief Judge So-beloff, writing for the court, recognized that there is a limit to the prison discipline doctrine: “* * * [I]t has never been held that upon entering a pi-ison one is entirely bereft of all of his civil rights and forfeits every protection of the law.” 291 F.2d at 198. Nor are the Second and Fourth Circuits in conflict with the Seventh Circuit’s recent decision in Cooper v. Pate, 324 F.2d 165 (7th Cir. 1963). The discipline there allowed was the restriction placed not on a religious group, but on a movement found by the court to have taken on a religious facade better to implement its objective of violent overthrow of the white race. Answering the broad — and I think erroneous — interpretation of the prison discipline defense raised by the warden, however, does not dispose of the particular situation before me. This is not a case of discrimination against particular religious beliefs. The prisoner is not being punished for having certain religious convictions. Nor is this prisoner being deprived of opportunities permitted others similarly situated. The plaintiff here is seeking to exercise his re ligious beliefs by attending corporate worship in the general prison population despite his being assigned to the Segregation Unit. The distinction between the freedom to believe and the freedom to exercise one’s" }, { "docid": "19815207", "title": "", "text": "hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the [First Amendment’s proscription of any law ‘respecting an establishment of religion, or prohibiting the free exercise thereof’] embraces two concepts — freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. No one would contest the proposition that a state may not, by statute, wholly deny the right to preach or to disseminate religious views. Plainly such a previous and absolute restraint would violate the terms of the guarantee. It is equally clear that a state may by general and non-discriminatory legislation regulate the times, the places . of holding meetings [italics supplied] [upon its streets]; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment.” These principles or precepts safeguarding freedom of religion were formulated generally for individual liberty versus governmental regulation in open society; nevertheless, such follow and abide with an inmate of a penal institution but subject to necessary and reasonable institutional regulation. “ ‘Freedom of religion can never mean freedom to interfere with the peaceful rights of others, or freedom to flagrantly disregard reasonable rules of conduct in or out of prison.’ ” Sharp, supra, at page 970, citing Evans v. Ciccone, 377 F.2d 4, at 6 (8th Cir. 1967); Sostre v. McGinnis, 334 F.2d 906, at 908 (2nd Cir. 1964), cert. denied, 379 U.S. 892, 85 S.Ct. 168," }, { "docid": "13315720", "title": "", "text": "has been recognized in many different contexts. E.g., Burgin v. Henderson, 536 F.2d 501 (2nd Cir.1976) (prisoner’s right to grow beard for religious purposes); United States v. Kahane, 396 F.Supp. 687 (E.D.N.Y.), aff'd sub nom. Kahane v. Carlson, 527 F.2d 491 (2nd Cir. 1975) (prison must make allowance for religiously-based dietary restrictions); Cooper v. Pate, 382 F.2d 518 (7th Cir. 1967) (prisoners’ right to religious services); Walker v. Blackwell, 411 F.2d 23 (5th Cir.1969) (prisoners’ right of access to religious literature). . Other courts of appeals have applied a wide variety of legal standards to prisoner claims of infringement of free exercise rights. E.g., Green v. White, 545 F.2d 1099, 1100 (8th Cir.1976) (per curiam) (a prisoner “is not allowed, in the name of religion, special privileges not otherwise provided prisoners”); Teterud v. Burns, 522 F.2d 357, 359 (8th Cir.1975) (“.. . a regulation which is more restrictive than necessary to meet the institutional objectives or which does not serve those objectives will be struck down.”); Proffitt v. Ciccone, 506 F.2d 1020, 1021 (8th Cir.1974) (reasonable regulations may be applied despite religious objection because “[fjreedom of religion can never mean ... freedom to flagrantly disregard reasonable rules of conduct in or out of prison,” quoting Evans v. Ciccone, 377 F.2d 4, 6 (8th Cir.1967)); O’Brien v. Blackwell, 421 F.2d 844, 845 (5th Cir.1970) (per curiam) (extreme deference to prison officials); Brown v. Wainwright, 419 F.2d 1376, 1377 (6th Cir.1970) (per curiam) (unreasonable or arbitrary standard); Sharp v. Sigler, 408 F.2d 966, 971 (8th Cir.1969) (“The standard is one of reasonableness”). Several courts of appeals have analyzed prisoner free exercise claims under the Sherbert v. Verner “compelling state interest” test. E.g., Kennedy v. Meacham, 540 F.2d 1057, 1061 (10th Cir.1976); Neal v. State of Georgia, 469 F.2d 446, 450 (5th Cir.1972); Walker v. Blackwell, 411 F.2d 23, 25 (5th Cir.1969); Barnett v. Rodgers, 410 F.2d 995, 1000 (D.C.Cir.1969). At least seven different standards for analyzing prisoner free exercise claims have been suggested. See generally Comment, The Religious Rights of the Incarcerated, 125 U.Pa.L.Rev. 812 (1977). . Madyun could have received, in" }, { "docid": "367858", "title": "", "text": "be. Conduct remains subject to regulation f°r the protection of society. The freedom to act must have appropriate definition to preserve the enforeement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. _ No one wou^ c°ntest the proposition ^*at a state may^ not, by statute, wholly deny the right to preach or to disseminate religious views. Plainly such a previous and absolute restraint would violate the terms 0£ guarantee * * * » Although this case does not specifically religious^ freedom in penal institutions, it is quite analgous and very persuasive. The right to practice one s religious beliefs, there^ discussed, was subject only to regulation for the proteetion of society.^ Such regulation (for benefit of the inmates) is equally applicable in a penal institution. “ * * * it has never been held that upon entering a prison one is entirely bereft of all of his civil rights and forfeits every protection of the law.” (See Sewell v. Pegelow, 4 Cir., 291 F.2d 196.) The order of the Commissioners of the District of Columbia, promulgated November 25, 1953, requiring prison offieials to make facilities available without regard to race or religion does not exempt the Youth Center. The Director has proffered no legal justification for the discrimination there imposed and we find none. Therefore, an appropriate order will be entered herein permitting all inmates at the Youth Center who are adherents of the Muslim faith to practice their religion at the Youth Center on a nondiscriminatory basis so long as it does not present a clear and present danger to the orderly functioning of the institution. Lest there be no misunderstanding, the practice of this right (religious freedom) in a penal institution is not absolute — it is subject to rules and regulations necessary to the safety of the prisoners and the orderly functioning of the institution. Adherents of the Muslim faith, or of any other religious sect, found guilty of violating established prison rules will not be heard to" }, { "docid": "22981573", "title": "", "text": "Vallee, 293 F.2d 233 (2 Cir., 1961), federal courts held that a petition alleging discriminatory treatment because of religion stated a cause of action entitling the Black Muslim plaintiffs to relief under the federal Civil Rights Act. Segregation and discrimination merely because of beliefs could not be justified by inherent prison structural and systematic considerations. In Sewell, the district court had dismissed the complaint on the grounds that it was without jurisdiction to entertain the petition because the matters alleged related to the discipline and conduct of the internal affairs of the prison which were exclusively within the authority of the Executive Department. The complaint had charged that all the Muslims in the institution had been in isolation and deprived of institutional privileges for no reason other than the hostility of the prison officials toward persons of their faith. The complaint further alleged physical deprivations, discrimination as to both the wearing of religious medals and to consultation with religious advisers, and suppression of grievance letters — all privileges accorded the other prisoners. Thus the constitutionally significant questions of interference with the practice of religion, discrimination in the practice of religion, and discrimination on the basis of religion were raised. The Sewell Court declared: “It is beyond dispute that certain rights and privileges of citizenship are withdrawn from prisoners, but it has never been held that upon entering a prison one is entirely bereft of all of his civil rights and forfeits every protection of the law.” (291 F.2d at 198) The court reversed the order of dismissal and remanded for a hearing on the merits, citing the statement of United States, ex rel. Marcial v. Fay, 247 F.2d 662, 669 (2 Cir., 1957) cert, den., 355 U.S. 915, 78 S.Ct. 342, 2 L.Ed.2d 274, for the proposition, “We must not play fast and-loose with basic constitutional rights in the interest of administrative efficiency.” In the Pierce case, involving a similar complaint, the court noted the extraordinary character of a complaint of religious persecution: “Whatever may be the view with regard to ordinary problems of prison discipline, however, we think that" }, { "docid": "19984237", "title": "", "text": "as to personal hygiene and grooming have long been upheld in this Circuit. See Brooks v. Wainwright, 428 F.2d 652 (5th Cir., 1970). Such regulations have been sustained in other Circuits as well. See e. g. Proffitt v. Ciccone, 506 F.2d 1020 (8th Cir., 1974); Rinehart v. Brewer, 491 F.2d 705 (8th Cir., 1974) (Lay, J., dissenting). The general rule is that Courts should not interfere in the internal management or functions of State prisons. In the recent case of Hill v. Estelle, 537 F.2d 214 (5th Cir., 1976) the Fifth Circuit upheld the decision in Brooks in a per curiam opinion: “In Brooks we stated that haircut and shaving regulations in a state prison did not violate the inmates’ free exercise of religion, freedom of expression, or due process of law.” Hill, supra, at p. 215. This Court agrees with the rationale of Hill and under the separation of powers would not interfere with the duty of the Executive Branch to administer the prisons “where prisoner regulations are neither unreasonable nor arbitrary” with respect to hair length or beards. Hill, supra, 537 F.2d at p. 215. See also Williams v. Hoyt, 556 F.2d 1336 at 1339 (5th Cir., 1977). Accordingly, petitioner’s demand for the right to grow his beard is hereby DENIED. The denial of Petitioner’s demand to espouse in prison his particular creed of the “Eclatarian Demandate of Natural Rights” cannot be held by this Court to be an unconstitutional abridgment of the First Amendment. Where dangerous felons are involved it has been held that even the refusal of prison authorities to allow a high-risk prisoner to attend chapel, much less the right to \"preach” to fellow inmates, is not a denial of First Amendment rights. Sharp v. Sigler, 408 F.2d 966 (8th Cir., 1960). The Court stated in Sharp v. Sigler at page 970: “While freedom to believe is absolute, the exercise of religion is not.” It has also been held that: “ ‘Laws are made for the government of actions, and while they cannot interfere with- mere religious belief and opinions, they may with practices.’ Reynolds" }, { "docid": "22981572", "title": "", "text": "1967). It is impermissible for prison officials and regulations to deny a prisoner access to the courts unless that prisoner has managed to obtain counsel. White v. Ragan, 1945, 324 U.S. 760, 762, 65 S.Ct. 978, 87 L.Ed. 1348 note 1. See also Spires v. Dowd, 271 F.2d 659, 661. (Seventh Circuit, 1959). A prisoner’s allegations of beatings and torture have been held to state a claim under the Civil Rights Acts. Sie-gel v. Ragan, 88 F.Supp. 996, 998 (N.D. 111.1949); Gordon v. Garrison, 77 F. Supp. 477. Even more pertinent to petitioner’s case are those cases that have recognized that constitutional safeguards are intended to protect the rights of all citizens, including prisoners, especially against official conduct which is arbitrary, particularly in the area of racial discrimination and deprivation of First Amendment freedoms. In recent cases involving Black Muslims, the courts have held that a complaint which alleged infringement of religious freedom and rights presented a claim which the courts would review on the merits. In Sewell v. Pegelow, supra, and Pierce v. La Vallee, 293 F.2d 233 (2 Cir., 1961), federal courts held that a petition alleging discriminatory treatment because of religion stated a cause of action entitling the Black Muslim plaintiffs to relief under the federal Civil Rights Act. Segregation and discrimination merely because of beliefs could not be justified by inherent prison structural and systematic considerations. In Sewell, the district court had dismissed the complaint on the grounds that it was without jurisdiction to entertain the petition because the matters alleged related to the discipline and conduct of the internal affairs of the prison which were exclusively within the authority of the Executive Department. The complaint had charged that all the Muslims in the institution had been in isolation and deprived of institutional privileges for no reason other than the hostility of the prison officials toward persons of their faith. The complaint further alleged physical deprivations, discrimination as to both the wearing of religious medals and to consultation with religious advisers, and suppression of grievance letters — all privileges accorded the other prisoners. Thus the constitutionally" }, { "docid": "2389151", "title": "", "text": "F.2d at 167. The court proceeded to affirm the district court’s judgment of dismissal for failure to state a claim on which relief could be granted, but was reversed per curiam by the Supreme Court which stated: “Taking as true the allegations of the complaint, as they must be on a motion to dismiss, the complaint stated a cause of action and it was error to dismiss it. See Pierce v. LaVallee, 293 F.2d 233 (C.A. 2d Cir.); Sewell v. Pegelow, 291 F.2d 196 (C.A. 4th Cir.).” Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030, 1964. The Sewell case cited by the Supreme Court, as well as Fulwood v. Clemmer, 111 U.S.App.D.C. 184, 295 F.2d 171, 1961, allowed federal prisoners sentenced in the District of Columbia to bring similar actions on the theory that the District of Columbia is a state or territory within the civil rights statute, 42 U.S.C. § 1983. A federal prisoner at the Lewisburg, Pennsylvania, penitentiary brought an action to enforce his alleged rights as a Muslim, and the parties agreed that it should be considered as a civil action under 42 U.S.C. § 1983. Desmond v. Blackwell, 235 F.Supp. 246, D.C.Pa.1964. The district court, after noting the movement’s impressive history of inciting riots and violence, found that the administration of the prison by the responsible authorities was reasonable, justifiable and neither arbitrary nor capricious, and the petition was denied, after hearing. The court quotes from the opinion of District Judge Brennan in Pierce v. La Vallee, 212 F.Supp. 865, 869, D.C. N.D.N.Y.1962: “In our zeal for the protection of freedom of religious belief and practice, the particular circumstances involved may not be overlooked. A large prison population is committed to the custody of a minority of prison employees and authorities. Discipline is necessary for the protection of both the inmates and the public. Prison discipline may on occasions impinge upon fundamental rights. That a public officer has or will violate the constitutional safeguards of the freedom of religion, in this court’s opinion must be established by convincing evidence. Such a charge" }, { "docid": "1347692", "title": "", "text": "WINTER, Circuit Judge: Plaintiff, an inmate of the Virginia state prison who professes adherence to the Islamic, or Black Muslim, faith, filed a complaint against prison officials alleging that he had been denied permission to subscribe to the newspaper Muhammad Speaks, to purchase the book Message to the Blackman in America by Elijah Muhammad, to order Islamic buttons and emblems and an Arabic dictionary and grammar, and to hold prayer meetings together with other members of the Islamic sect. He sued for injunc-tive relief under 42 U.S.C.A. § 1983 and for damages, apparently under the Federal Tort Claims Act, 28 U.S.C.A. § 1346 et seq. The district court dismissed the complaint without hearing, after requiring an answer to be filed. The district judge denied relief as to Muhammad Speaks and Message to the Blackman on the ground that “this matter of censorship” was “solely within the sound discretion of the State Farm officials,” relying heavily on this Court’s decision in Abernathy v. Cunningham, 393 F.2d 775 (4 Cir. 1968). Plaintiff’s claim as to religious and Arabic materials was dismissed without prejudice on the basis of evidence submitted with defendants’ answer which indicated that the denial of religious materials was the product of misunderstanding, and that plaintiff would be permitted to obtain them and hold prayer meetings in the future. Damages for previous denials were held unavailable because plaintiff had failed to allege diversity of citizenship. Plaintiff has appealed. We reverse and remand for further proceedings. I “[I]t has never been held that upon entering a prison one is entirely bereft of all of his civil rights and forfeits every protection of the law.” Sewell v. Pegelow, 291 F.2d 196, 198 (4 Cir. 1961). See also Pierce v. La Vallee, 293 F.2d 233 (2 Cir. 1961). This statement was made in a case in which state prisoners were granted the right to seek to establish' that they were subjected to discriminatory treatment in prison, including prohibition of the practice of their religion and the wearing of religious symbols, because they were Muslims. We decided that if the evidence sustained their allegations" }, { "docid": "2368141", "title": "", "text": "Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct.'315, 323, 89 L.Ed. 430 (1945), the court emphasized that, “[o]nly the gravest abuses endangering paramount interests, give occasion for permissible limitation” on First Amendment rights. These broad principles apply to the religious rights of prisoners: “The state may restrict religious acts if it can be shown that they pose ‘some substantial threat to public safety, peace or order,’ and that there is a ‘compelling state interest in the . . . regulation.’ [P]laintiff’s desire to practice his religion may be restricted only upon a convincing showing that paramount state interests so require.” Brown v. Peyton, 437 F.2d 1228, 1231 (4th Cir. 1971) (rights of Black Muslim prisoner). See generally Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); Pierce v. LaVallee, 293 F. 2d 233 (2d Cir. 1961); Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961). Such cases must, of course, be read against the Supreme Court’s acknowledgement that “ [1] awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights.” Price v. Johnson, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). See also Sostre v. Mc-Ginnis, 334 F.2d 906, 908 (2d Cir. 1964). Yet, the Supreme Court has also held that First Amendment rights may be curtailed only by the least drastic means. United States v. Bobel, 389 U.S. 258, 268, 88 S.Ct. 419, 426, 19 L.Ed.2d 508, 516 (1967); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed. 2d 231, 237 (1960); Note, Less Drastic Means and the First Amendment, 78 Yale L.J. 464 (1969). In addition to these First Amendment grounds, the Supreme Court has held that the Fourteenth Amendment precludes prison authorities from indirectly and unreasonably disfavoring practices of some religions by preventing its adherents from observing their religious requirements. See, e. g., Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972) (Buddhist prisoner must be allowed an opportunity to practice his religious faith comparable to opportunities allowed to prisoners of other faiths). This" } ]

[ { "docid": "12573547", "title": "", "text": "the strike. Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866; United States v. McMillon, 14 F.3d 948, 952 & n. 3 (4th Cir.1994); see Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 270 n. 21, 97 S.Ct. 555, 566 n. 21, 50 L.Ed.2d 450 (1977). If the court concludes, or the party admits, that the strike has been exercised in part for a discriminatory purpose, the court must consider whether the party whose conduct is being challenged has demonstrated by a preponderance of the evidence that the strike would have nevertheless been exercised even if an improper factor had not motivated in part the decision to strike. See Howard v. Senkowski, 986 F.2d 24, 26-30 (2d Cir.1993). If so, the strike stands. See id. In detailing the particulars of the Batson proof scheme, we are mindful that its sole purpose is to help courts and parties answer, “not unnecessarily evade[,] the ultimate question of discrimination vel non.” United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). A finding by the district court concerning whether a peremptory challenge was exercised for a racially discriminatory reason is given great deference by this court; we review that finding only for clear error. See Hernandez, 500 U.S. at 364-65, 111 S.Ct. at 1868-69 (because finding of discrimination turns largely on credibility determinations, findings of district court in Batson challenge are reviewed for clear error); id. at 372, 111 S.Ct. at 1873 (O’Connor, J., concurring) (agreeing with plurality that “trial court’s finding as to discriminatory intent” is reviewed for clear error). Indeed, as we have previously noted, the district court is especially well-suited to resolve challenges to peremptory strikes of jurors because it has observed with its own eyes the very act in dispute. See McMillon, 14 F.3d at 953; United States v. Grandison, 885 F.2d 143, 146 (4th Cir.1989), cert. denied, 495 U.S. 934, 110 S.Ct. 2178, 109 L.Ed.2d 507 (1990). However, when the district court fails to articulate its findings, remand for further proceedings may be" } ]

[ { "docid": "23083527", "title": "", "text": "765, 768-69, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam); Hernandez, 500 U.S. at 360, 111 S.Ct. 1859. Perry’s clearly inappropriate courtroom behavior and its potential effect on King’s ability to serve as a juror are in no way related to race, and, thus, the proffered reason crosses this modest threshold. See, e.g., Purkett, 514 U.S. at 769, 115 S.Ct. 1769 (finding prosecutor’s explanation that strikes of black jurors were based on beards and long, unkempt hair to be race-neutral for purposes of the second Batson way station). This leaves the third, and final, determination: whether the appellants have proven that the strike constituted racial discrimination. This decision boils down to whether the appellants have convinced the district court that the race-neutral explanation furnished by the government rings hollow. Because the question is intensely fact-driven and the answer often pivots on credibility, appellate tribunals must scrutinize the trial court’s response under a highly deferential glass. See Hernandez, 500 U.S. at 364-65, 111 S.Ct. 1859; Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712. In this case, the trier credited the government’s explanation: I have heard the explanation of the Government and I have observed [the prosecutor’s] reaction to Mr. Perry’s applause. And I cannot say that [the prosecutor’s] challenge here is based on race. [His] challenge is based, as he says, on conduct and on the concern that he has — -and quite frankly, that the Court has — as to what effect Mr. Perry’s misbehavior would have on Juror King.... The judge also 'noted that she had observed no pattern of discrimination in the government’s use of its peremptory challenges — a fact that may be entitled to special weight in determining whether a prosecutor’s race-neutral explanation for a peremptory challenge is pretextual. See Hernandez, 500 U.S. at 363, 111 S.Ct. 1859. The appellants urge us to hold that Judge Lisi committed clear error in upholding the prosecutor’s strike. They assert that she misunderstood the applicable legal standard, but the record belies this ipse dixit. They also harp on the prosecutor’s earlier statement that he might consider" }, { "docid": "22786460", "title": "", "text": "the Fourth Amendment.” (internal quotation marks omitted)). B. Having determined that Farri- or’s Fourth Amendment rights were not violated, we next turn to consider Farrior’s contention that the district court erred in rejecting his Batson challenge. “A finding by the [trial] court concerning whether a peremptory challenge was exercised for a racially discriminatory reason is given great deference by this court; we review that finding only for clear error.” Jones v. Plaster, 57 F.3d 417, 421 (4th Cir.1995); Hernandez v. New York, 500 U.S. 352, 369, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion). When making a Batson challenge, the defendant must first make a prima facie showing of purposeful discrimination. See United States v. Malindez, 962 F.2d 332, 333 (4th Cir.1992). Once the defendant establishes a prima facie, ease of discrimination, the burden shifts to the Government to articulate a race-neutral explanation for the challenge. See Batson, 476 U.S. at 97, 106 S.Ct. 1712. If the Government satisfies this requirement, the burden shifts back to the defendant to prove that the explanation given is a pretext for discrimination. Howard v. Moore, 131 F.3d 399, 407 (4th Cir.1997) (en banc). The ultimate burden always rests with the opponent of the challenge to prove purposeful discrimination. Id. “Discriminatory purpose ... implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ... selected ... a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group.” Hernandez, 500 U.S. at 360, 111 S.Ct. 1859. The trial court’s resolution of whether the challenge was exercised for a racially discriminatory reason rests largely on credibility determinations, and therefore, we give its findings great deference. See Jones, 57 F.3d at 421 (“[T]he [trial] court is especially well-suited to resolve challenges to peremptory strikes of jurors because it has observed with its own eyes the very act in dispute.”). Farrior, who is African American, argues that the Government’s use of a peremptory strike to exclude the only African American member of the venire panel violated Batson. To" }, { "docid": "7908054", "title": "", "text": "the other’s use of peremptory challenges, the same three-step analytical process is applied by the district court: First, the claimant must make a prima facie showing that the peremptory challenges have been exercised on the basis of race. Second, if this requisite showing has been made, the burden shifts to the party accused of discrimination to articulate race-neutral explanations for the peremptory challenges. Finally, the trial court must determine whether the claimant has carried his burden of proving purposeful discrimination. Bentley-Smith, 2 F.3d at 1373 (citing Batson, 476 U.S. at 93-98, 106 S.Ct. 1712; McCollum, 505 U.S. at 59, 112 S.Ct. 2348). 1. Standard of Review “The district court’s determination that a party has used peremptory strikes in a discriminatory manner is a finding of fact and thus cannot be overturned by this Court absent clear error.” Id. at 1372 (citing Hernandez v. New York, 500 U.S. 352, 365-66, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). A “district court’s finding is clearly erroneous if, on the entire evidence, [this Court is] left with a definite and firm conviction that a mistake has been committed.” United States v. Brown, 650 F.3d 581, 589 (5th Cir.2011) (citation and internal quotation marks omitted). “The district court’s determination is entitled to great deference, since findings in this context largely turn on an evaluation of the credibility or demeanor of the attorney who exercises the challenge.” Bentley-Smith, 2 F.3d at 1373 (citing Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712; Hernandez, 500 U.S. at 365, 111 S.Ct. 1859). 2. “Majority Race” Exception As a preliminary matter, Dalton and Miller argue that the Batson line of cases ought not even apply here. Their argument is that discrimination in violation of the Equal Protection Clause is impossible where black defendants strike white prospective jurors who are replaced by other white prospective jurors, because no race is favored over any other race. Dalton further argues that Batson should not apply to this case because a white prospective juror’s right to serve on a jury is outweighed by the “superior fair trial right of a minority class" }, { "docid": "12624776", "title": "", "text": "was on the entire venire. The government explained the challenge on the ground that the prospective juror had been unemployed for a year and that it was concerned about his ability to serve as a conscientious juror. There is no evidence that the government challenged other members of minority groups and, indeed, two jurors with Latino surnames were seated on the jury. The court, without explanation, denied the Batson challenge and excused the juror. Appellants contend that the court erred in failing to make an initial ruling on whether the defense had made out a prima facie case of discrimination and in failing to make findings as to whether the government had offered a race-neutral reason. Defendants’ first contention is without merit: Once a prosecutor has offered a race-neutral explanation for the peremptory challenge and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot. See Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). Batson requires the trial judge “to determine if the defendant has established purposeful discrimination.” 476 U.S. at 98, 106 S.Ct. 1712. Neither Batson nor its progeny requires that the trial judge make specific findings, beyond ruling on the objection. See Hernandez, 500 U.S. at 363, 111 S.Ct. 1859. The district court’s determination on the issue of intent to discriminate is reviewed under a deferential standard. See id. at 364, 111 S.Ct. 1859. The prosecutor’s explanation, to satisfy Batson, need only be facially valid; it need not be persuasive or even plausible so long as it is race-neutral. See Burkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). Appellants contend that the district court committed reversible error in denying appellants’ Batson challenge because the prosecutor’s explanation for the strike was fundamentally unfair and not race-neutral. But as noted in Burkett, in which two Black jurors were struck because they had long, curly and unkempt hair and facial hair, an explanation passes muster “unless discriminatory intent is inherent in" }, { "docid": "22786461", "title": "", "text": "is a pretext for discrimination. Howard v. Moore, 131 F.3d 399, 407 (4th Cir.1997) (en banc). The ultimate burden always rests with the opponent of the challenge to prove purposeful discrimination. Id. “Discriminatory purpose ... implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ... selected ... a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group.” Hernandez, 500 U.S. at 360, 111 S.Ct. 1859. The trial court’s resolution of whether the challenge was exercised for a racially discriminatory reason rests largely on credibility determinations, and therefore, we give its findings great deference. See Jones, 57 F.3d at 421 (“[T]he [trial] court is especially well-suited to resolve challenges to peremptory strikes of jurors because it has observed with its own eyes the very act in dispute.”). Farrior, who is African American, argues that the Government’s use of a peremptory strike to exclude the only African American member of the venire panel violated Batson. To make out a prima facie case under Batson, Farrior had to raise at least an inference that the Government struck the potential juror based on her race. See Batson, 476 U.S. at 96, 106 S.Ct. 1712. Farrior attempted to raise such an inference by simply arguing that both he and the prospective juror are African American. But it is well established in this circuit that a prima facie ease of discrimination does not arise merely because “a racial minority has been struck from the venire.” Malindez, 962 F.2d at 334. In any event, the Government articulated three legitimate race-neutral explanations for striking the juror in question, reasons that Farrior has not shown to be pretextual. Specifically, the Government: (1) noted that the juror owned a bail bonding business and, therefore, might be sympathetic to criminal defendants; (2) struck every prospective juror who had a relative who had been arrested for drugs, which included this prospective juror, whose niece and nephew had been charged with drug related offenses; and (3) noted that the juror had previously" }, { "docid": "7427611", "title": "", "text": "appeal, Payton asserts that the district court clearly erred in denying his Batson challenge because the government’s proffered explanation for the strike — “that’s not going to work for the government to have a juror who knows the defense attorney and her husband” — cannot constitute a race-neutral explanation in light of the government’s failure to inquire of the juror about his relationship with counsel or her husband. The Equal Protection clause of the Fourteenth Amendment prohibits the use of peremptory challenges to strike jurors solely on the basis of race. Doss v. Frontenac, 14 F.3d 1313, 1316 (8th Cir.1994) (citing Batson, 476 U.S. at 79, 106 S.Ct. 1712, and Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991)). If a party makes a prima facie showing that a peremptory challenge is race based, the proponent must show a race neutral justification to overcome the objection. Id. The district court then de cides whether the objecting party has shown purposeful discrimination. Id. Since those factual findings turn largely on credibility evaluations, they are due great deference, Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712, and our review is for clear error, United States v. Moore, 895 F.2d 484, 485 (8th Cir.1990). United States v. Ellison, 616 F.3d 829, 831-32 (8th Cir.2010). “When, as here, the government offered a nondiscriminatory explanation for the strikes and the court ruled on the ultimate question of purposeful discrimination, the preliminary prima facie issue arguably became moot.” United States v. Lewis, 593 F.3d 765, 770 (8th Cir.2010) (internal quotation, alteration, and citation omitted). Therefore, we will review “the district court’s conclusion that the government’s reasons for striking [the juror] were nondiscriminatory.” Id. Here, the district court did not clearly err in concluding that the government’s reason for striking the juror — knowing defense counsel — was “legitimate and nondiscriminatory.” Id. (holding that district court did not clearly err in finding that the government’s proffered reasons for striking two African-American jurors were racially neutral where the government explained that it struck the jurors because they, inter alia, knew" }, { "docid": "23142138", "title": "", "text": "we uphold his convictions for both conspiring and attempting to provide material support to a foreign terrorist organization. C. The District Court Reasonably Rejected Sabir’s Batson Challenge Sabir, who is African-American, argues that the prosecution’s use of peremptory challenges to excuse five African Americans from the jury in his case violated the Fourteenth Amendment’s guarantee of equal protection as construed by the Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). After an extensive inquiry, the district court rejected this argument, finding that each of the five challenges was supported by credible non-diseriminatory reasons. Such a ruling “represents a finding of fact,” which we will not disturb in the absence of clear error. Hernandez v. New York, 500 U.S. 352, 364, 369, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion); see United States v. Lee, 549 F.3d 84, 94 (2d Cir.2008); United States v. Taylor, 92 F.3d 1313, 1326 (2d Cir.1996). We identify no such error in this case. A three-step inquiry guides a district court’s evaluation of a Batson challenge: First, a defendant must make a prima facie showing that a peremptory chal lenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Snyder v. Louisiana, 552 U.S. 472, 476-77, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (internal quotation marks and brackets omitted). For purposes of this appeal, we assume that Sabir satisfied the “minimal burden” of a prima facie showing, Overton v. Newton, 295 F.3d 270, 279 n. 10 (2d Cir.2002), as he could do by reference to the government’s overall exclusion rate for African-American prospective jurors, see Jones v. West, 555 F.3d 90, 98-99 (2d Cir.2009). Nor need we discuss the second prong of Batson analysis as Sabir does not — and cannot — contend that the government failed to proffer reasons for its challenges that were racially neutral on" }, { "docid": "20453659", "title": "", "text": "race was a substantial motivating factor—that is, whether the defendant has shown “purposeful discrimination” at Batson’s third step-the trier of fact must evaluate “the persuasiveness of the justifieation[s]” offered by the prosecutor. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). “In deciding if the defendant has carried his burden of persuasion, a court must undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Batson, 476 U.S. at 93, 106 S.Ct. 1712 (internal quotation marks and citation omitted). This inquiry includes “side-by-side comparisons” of the African American panelists who were struck and white panelists who were allowed to serve. “If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Bat-son’s third step.” Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). Here, the California Court of Appeal failed to undertake any meaningful inquiry into direct or circumstantial evidence of the prosecutor’s intent in striking the jurors. The court merely “reiterat[ed] the prosecutor’s stated reasons, and then [found] they were race-neutral.” Green v. LaMarque, 532 F.3d 1028, 1031 (9th Cir.2008). However, the trial court did consider the prosecutor’s proffered justifications and the relevant facts. The judge discussed the justifications and indicated that he found them persuasive. By concluding that the stated criteria were “not pretext,” and “not systematic,” the trial court made the finding required at Batson’s third step. This factual finding is entitled to appropriate deference. See Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712. In particular, we must defer to the trial judge’s findings regarding the demeanor of the individuals in the courtroom. Hernandez, 500 U.S. at 365, 111 S.Ct. 1859 (“As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies ‘pe culiarly within a trial judge’s province.’ ”) (citations omitted). We review the state court’s finding that the prosecutor did not engage" }, { "docid": "30125", "title": "", "text": "contrary to, or an unreasonable applicátion of, clearly established law. Alternatively, if the prosecutor had excluded Juror 016 because of her demeanor, this justification would not constitute a denial of equal protection, as discriminatory intent is not inherent in the prosecutor’s explanation. Hernandez, 500 U.S. at 360, 111 S;Ct. 1859. Because we find no error in the California Court of Appeal’s analysis at step 2, we proceed to step 3. B. In the third step of a Batson challenge, the trial court has “the duty to determine whether the defendant has established purposeful discrimination,” Batson, 476 U.S. at 98, 106 S.Ct. 1712, and therefore must evaluate the “persuasiveness” of the prosecutor’s proffered reasons, see Purkett, 514 U.S. at 768, 115 S.Ct. 1769. In determining whether the defendant has carried this burden, the Supreme Court provides that “a court must undertake ‘a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.’ ” Batson, 476 U.S. at 93, 106 S.Ct. 1712 (quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)); see also Hernandez, 500 U.S. at 363, 111 S.Ct. 1859. “[I]mplausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Purkett, 514 U.S. at 768, 115 S.Ct. 1769; see also Lewis, 321 F.3d at 830 (“[I]f a review of the record undermines the prosecutor’s stated reasons, or many of the proffered reasons, the reasons may be deemed a pretext for racial discrimination.”) In the end, a finding of discriminatory intent turns largely on the trial court’s evaluation of the prosecutor’s credibility, see Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712, because”[t]he credibility of the prosecutor’s explanation goes to the heart of the equal protection analysis,” Hernandez, 500 U.S. at 367, 111 S.Ct. 1859. Indeed, “[i]n the typical peremptory challenge inquiry, the decisive question -will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed.” Id. at 365, 111 S.Ct. 1859. “Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable," }, { "docid": "22411271", "title": "", "text": "teachers in the United States are women, striking the teachers was merely pretext for gender discrimination. Thus, according to Boyd, the district court erred when it failed to sustain his Batson challenge to the Government’s strikes. We disagree. We accord great deference to the district court’s finding as to whether a peremptory challenge was exercised for a prohibited, discriminatory reason; we review that finding for clear error. Cf. Hernandez v. New York, 500 U.S. 352, 364-65, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (given that a finding of race discrimination turns largely on credibility determinations, a district court’s findings in a Batson challenge are reviewed for clear error). This is because a district court is particularly well-suited to resolve challenges to peremptory strikes of jurors, as it has first-hand knowledge of the very act in dispute. See United States v. McMillon, 14 F.3d 948, 953 (4th Cir.1994); United States v. Grandison, 885 F.2d 143, 146 (4th Cir.1989), cert. denied, 495 U.S. 934, 110 S.Ct. 2178, 109 L.Ed.2d 507 (1990). It is a violation of the equal protection principle for a juror to be excused in an invidiously discriminatory fashion. J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (holding that making peremptory challenges based solely on a prospective juror’s sex is unconstitutional); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (holding that a prosecutor’s use of peremptory challenge to exclude jurors based solely on their race is unconstitutional). When a party challenges his opponent’s exercise of a peremptory challenge on equal protection grounds, that party bears the burden of proving intentional discrimination. Batson, 476 U.S. at 93, 106 S.Ct. 1712; Hernandez, 500 U.S. at 373, 111 S.Ct. 1859 (O’Connor, J., concurring). Here, Boyd does not call into question the bonafides of the prosecutor’s explanation for its strikes: that it prefers to have no teachers on the jury in a case of this type. Rather, Boyd essentially seeks an expansion of the Batson prohibition to cover not only strikes that are intentionally invidiously discriminatory, but those having a discriminatory" }, { "docid": "22206518", "title": "", "text": "five of its eight peremptory challenges against African-American jurors in violation of the Equal Protection Clause of the Fourteenth Amendment. The government struck three African-Americans with its six initial peremptory challenges. The government then used both of its peremptory challenges for the alternate jury pool to strike African-Americans. Chad Gibbs’s attorney objected to each challenge of an African-American juror, and the district court overruled each objection. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that the Equal Protection Clause forbids race-based peremptory challenges. To establish a violation of equal protection under Batson, the defendant must first make a prima facie showing that the prosecutor exercised peremptory challenges based on race. Id. at 96-98, 106 S.Ct. 1712. The burden of persuasion then shifts to the prosecution to articulate race-neutral reasons for the strikes. Id. The prosecutor must convey a reason that is “clear and reasonably specific.” Id. at 98, 106 S.Ct. 1712. If, as here, the district court rules on the prosecutor’s explanation, the requirement that the defendant make a prima facie showing of race-based peremptory challenges becomes moot. See Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion); United States v. Tucker, 90 F.3d 1135, 1142 (6th Cir.1996). When the district court rules on a prosecutor’s explanation for a peremptory challenge after an objection to the challenge, “the question ... boils down to whether the appellants established by a preponderance of the evidence that the peremptory strikes were intentionally discriminatory.” Tucker, 90 F.3d at 1142. We review for clear error all factual findings by the district court on this issue. See United States v. Hill, 146 F.3d 337, 341 (6th Cir.1998); Tucker, 90 F.3d at 1142. The prosecutor’s reason for the strike need not be sufficient to challenge for cause, but the prosecutor may not rely on his assurances of good faith. See Batson, 476 U.S. at 97-98, 106 S.Ct. 1712. The prosecution struck an African-American woman with its first peremptory challenge. See J.A. at 449. Gibbs’s lawyer objected. See J.A. at" }, { "docid": "23449016", "title": "", "text": "discussed the framework for analyzing a defendant’s claim of discriminatory use of peremptory challenges, established by Batson in the context of a claim of discrimination based on race: ... Batson ... outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause. 476 U.S., at 96-98.... First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Id., at 96-97. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Id., at 97-98. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Id., at 98. Hernandez, 500 U.S. at 358-59, 111 S.Ct. 1859 (plurality opinion). As to the prosecution’s burden to proffer a neutral explanation, the Court has stated that “[ujnless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (internal quotation marks omitted). Discriminatory intent may be found to be inherent where the proffer of a supposedly race-neutral explanation has a racial ingredient. See, e.g., Walker v. Girdich, 410 F.3d 120, 123 (2d Cir.2005) (ordering a new trial where the prosecutor began her proffer by stating that “ ‘one of the main things [she] had a problem with was that this [wa]s an individual who was a Black man with no kids and no family ’ ” (quoting prosecutor) (emphasis in Walker)). Since “ ‘a finding [as to whether there was] intentional discrimination is a finding of fact,’ ” and the “trial court findings ... in this context ... ‘largely will turn on evaluation of credibility,’ ” Hernandez, 500 U.S. at 364, 365, 111 S.Ct. 1859 (plurality opinion) (quoting Batson, 476 U.S. at 98 n.21, 106 S.Ct. 1712) (other internal quotation marks omitted), the trial court’s finding as to whether the prosecutor’s reason was race-neutral may be overturned only if that finding is" }, { "docid": "2274927", "title": "", "text": "but friendly and open with defense counsel. In denying the Bat-son challenge, the trial court found “entirely legitimate” reasons for striking Juror X, based on her demeanor, the way she “responded to one side versus the other,” and her “evasive answers.” The trial court did not merely accept the prosecu tor’s explanation at face value; it evaluated Ms statements in light of the evidence to discern whether he was being truthful. The state court of appeal reasonably concluded that the trial court fulfilled its duty under the third Batson step. Williams finally challenges the state courts’ findings that he failed to meet his burden of proof under the third Batson step. Because a trial court’s finding on purposeful discrimination rests largely on credibility, “a reviewing court ordinarily should give those findings great deference.” Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712. For us to set aside the state courts’ findings on discriminatory intent, Williams must rebut the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). We must be left with a firm conviction that the determination made by the state court is wrong and the one urged by Williams is correct. See Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir.2000) (quoting Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir.2000)). The trial judge had the unique opportu-mty to observe the demeanor of the prosecutor as he justified the peremptory strike, as well as Juror X as she interacted with counsel during voir dire. See Hernandez, 500 U.S. at 365, 111 S.Ct. 1859 (“As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies ‘Peculiarly within a trial judge’s province.’ ”) (Citations omitted). Upon doing so, the trial court saw what the prosecutor had seen; Juror X seemed friendly with defense counsel but was cold and evasive toward the prosecutor, particularly when pressed for details about her prior trial experience. As the primary arbiter of credibility, the trial court was entitled to find this evinced Juror X’s possible bias. See Burks v." }, { "docid": "23315699", "title": "", "text": "for Substantive Count. Furthermore, we find the district court properly instructed the jury that someone who jointly undertakes a criminal activity with others is accountable for their reasonably foreseeable conduct in furtherance of the joint undertaking. VI Defendants Billy Cox, Pat Malmstrom, and Gene Trout assert that the district court committed clear error by upholding the Government’s peremptory challenge of juror Joyce Jean Jones, a black woman. The Government explained that it struck Jones because she had indicated on a questionnaire reviewed before voir dire that she never read magazines, books other than the Bible, and did not watch television. The Government explained that it rated Jones low before it knew she was black. The district court accepted the Government’s answer as race-neutral stating that it was “legitimately appropriate and in good faith.” We give deference to a district court’s finding and evaluation of credibility of the Government’s offered reasons for striking a juror. See Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). The defendants argue that the Government’s proffered reasons for striking Jones were pretextual given that other jurors who preferred religious information were not struck. In addition, Cox argues that the alleged neutral explanation offered here does not relate to the case. See Batson v. Kentucky, 476 U.S. 79, 98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)(requiring that the prosecutor articulate a neutral explanation related to the particular case to be tried). Cox also contends that a Batson challenge cannot be satisfied by a prosecutor’s denial of discriminatory intention or affirmation of good faith. See Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). The contentions are without merit. We find no clear error. VII Tammy Morrow argues that the district court erred by denying her motion to dismiss the indictment because the prosecution for bank fraud was barred by the statute of limitations. She contends that, at the time of her indictment, 18 U.S.C. § 3282’s five-year statute of limitations period applied and had expired; that 18 U.S.C. § 3293, enacted August 9, 1989 and" }, { "docid": "1992331", "title": "", "text": "Jackson’s base offense level by two levels, based on its finding that Jackson was in possession of the gun found underneath the living-room couch. Jackson was sentenced to a term of imprisonment of thirty-seven months, with four years of supervised release. He appeals, raising the three issues mentioned at the beginning of this opinion. II. Jackson, who is black, claims that the prosecution improperly exercised its peremptory challenges by striking three of the six black members from the jury panel. The District Court found that Jackson had made a prima facie case of purposeful racial discrimination, and accordingly directed the prosecution to provide a neutral explanation for its challenges of the three black venire members. See Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S.Ct. 1712, 1722-23, 90 L.Ed.2d 69 (1986). The government then explained to the court its reasons for challenging the jurors in question. According to the government, one venire member was struck because she was young, single, unemployed, and had no stable history of employment; another was struck because she was young, separated, living at home, and unresponsive to questions; and the third venire member was struck because she was single and had a nephew who was incarcerated in a Missouri penitentiary. The prosecutor stated that based on his extensive trial experience he was looking for jurors with some experience and a commitment to the community, as such jurors generally have a better understanding of life and of what happens on the city streets where drug trafficking crimes tend to occur. The District Court ruled that these reasons were neutral and not pretextual and therefore upheld the three peremptory challenges at issue. Batson and our own decisions applying Batson make it clear that the District Court’s findings are entitled to considerable deference, 476 U.S. at 98, n. 21, 106 S.Ct. at 1724, n. 21 (“Since the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.”); we may upset them only if they are “clearly erroneous.” United States v. Nicholson, 885" }, { "docid": "9756729", "title": "", "text": "S.Ct. at 1723). Once the defendant has made a prima facie showing, the government must offer a race-neutral explanation for challenging the jurors. This is an extremely light burden, as the Supreme Court held in Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995), that the government’s proffered reason need not be particularly persuasive, or even plausible, so long as it is neutral. Finally, the district court must determine whether the defendant has established purposeful discrimination. Batson, 476 U.S. at 96-98, 106 S.Ct. 1712. Because this determination turns largely on the evaluation of credibility, reviewing courts give the findings of the district court great deference. Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724. The record in the instant case reveals that there was one African-American on the jury which convicted Harris. This juror was Number 25 on the venire panel and was the first African-American available on the venire panel. As it turns out, this venireman was the final panel member seated on the petit jury and was designated Juror Number 12. After the selection of the twelve petit jurors, the juror selection process continued so that the alternate jurors could be selected, and it is during this process that Harris claims the discrimination occurred. Venire panelists Numbers 26 and 27, who would have been alternate jurors Numbers 1 and 2, were both struck by the prosecutor. The prosecutor claimed that he eliminated venire member No. 26, an African-American woman, because she was unmarried and had no children. He further claimed that her demeanor seemed to indicate she did not want to be there. Venire member No. 27, an African-American male, was also struck by the prosecutor, allegedly because he had no children and had been a bus driver with the local transit authority. The prosecutor explained that there had recently been problems between local law enforcement officials and transit authority drivers, and he feared that Venire member No. 27 may have harbored feelings of animosity towards law enforcement officials. When the prosecutor struck the two African-American venire panelists, defense counsel" }, { "docid": "16321622", "title": "", "text": "RICHARD S. ARNOLD, Circuit Judge. Alan Roebke was convicted of converting to his own use grain pledged to the Commodity Credit Corporation. A jury found him guilty on each of five charges in the case, and he was sentenced to 30 months in prison. On appeal Mr. Roebke contends that the District Court erred in overruling his Batson challenge to the government’s peremptory strike of an African-American jury venire member. For the reasons given below, we affirm. I. The District Court’s denial of a Batson challenge is reviewed for clear error. United States v. Moore, 895 F.2d 484, 485 (8th Cir.1990). A finding of intentional discrimination is a finding of fact, and “[sjince the trial judge’s findings ... largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.” Batson v. Kentucky, 476 U.S. 79, 98 n. 21, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Appellant’s argument is that the sole African-American member of the jury ve-nire pool, Teranda Brown, was struck from the jury for reasons which were not race neutral. Ms. Brown informed the prosecutor that she had a federal student loan and, when asked, explained that she had, as yet, made no payments on this loan. The prosecutor later stated that he had reasonably assumed from her answer and demeanor that she was in default on her student loan. Six other members of the jury venire pool, who later served as jury members or alternate jurors, had also had federal loans. Another juror, a white man, Jeffrey Maass, had loans which had not been repaid, yet the prosecutor’s voir dire of Mr. Maass did not lead him to draw the same conclusion as he did with Ms. Brown. In order to find purposeful discrimination in the use of a peremptory challenge under Batson, Mr. Roebke must first make a prima facie case of racial discrimination. If such a showing is made, the government must suggest a race-neutral explanation for the strike. Finally, if a race-neutral explanation is offered, the trial court must decide whether the party objecting to the strike has" }, { "docid": "3044518", "title": "", "text": "in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). As a matter of North Carolina state law, when the trial court does not explicitly rule on whether the defendant made a prima facie case under step one, and the State proceeds to the second prong of Batson by articulating its explanation for the challenge, the question of whether the defendant established a prima facie case becomes moot. See State v. Williams, 343 N.C. 345, 471 S.E.2d 379, 386 (1996). As to the prosecutor’s burden under the second step, the Supreme Court has explained that, “[u]nless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Hernandez, 500 U.S. at 360, 111 S.Ct. 1859; see also Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (holding that “[w]hat it means by a ‘legitimate reason’ is not a reason that makes sense, but a reason that does not deny equal protection”). Finally, at Batson’s third step, “[t]he trial court [has] the duty to determine if the defendant has established purposeful discrimination.” Batson, 476 U.S. at 98, 106 S.Ct. 1712. Because a “judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.” Id. at 98 n. 21, 106 S.Ct. 1712; Hernandez, 500 U.S. at 364, 111 S.Ct. 1859. Thus, a finding of no discrimination is a factual finding that we review for clear error. Hernandez, 500 U.S. at 364-65, 111 S.Ct. 1859. In Miller-El II, the Supreme Court clarified and reiterated that, at this third-step, “a defendant may rely on all relevant circumstances to raise an inference of purposeful discrimination.” Miller-El II, 545 U.S. at 240, 125 S.Ct. 2317 (internal quotation marks omitted) (emphasis added). The Court also clarified that, at this third step, a defendant does not have to point to an identical juror of another race who was not" }, { "docid": "3044519", "title": "", "text": "makes sense, but a reason that does not deny equal protection”). Finally, at Batson’s third step, “[t]he trial court [has] the duty to determine if the defendant has established purposeful discrimination.” Batson, 476 U.S. at 98, 106 S.Ct. 1712. Because a “judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.” Id. at 98 n. 21, 106 S.Ct. 1712; Hernandez, 500 U.S. at 364, 111 S.Ct. 1859. Thus, a finding of no discrimination is a factual finding that we review for clear error. Hernandez, 500 U.S. at 364-65, 111 S.Ct. 1859. In Miller-El II, the Supreme Court clarified and reiterated that, at this third-step, “a defendant may rely on all relevant circumstances to raise an inference of purposeful discrimination.” Miller-El II, 545 U.S. at 240, 125 S.Ct. 2317 (internal quotation marks omitted) (emphasis added). The Court also clarified that, at this third step, a defendant does not have to point to an identical juror of another race who was not peremptorily challenged: “[n]one of our cases announces a rule that no comparison is probative unless the situation of the individuals compared is identical in all respects, and there is no reason to accept one.” Id. at 247 n. 6, 125 S.Ct. 2317; see also Coulter v. McCann, 484 F.3d 459 (7th Cir.2007) (“In Miller-El II, the Court clarified the way in which jurors of different races should be compared. It called for direct comparisons between ‘similarly situated’ venire-persons of different races.”). This approach makes intuitive sense, for, as the Court explained, “potential jurors are not products of a set of cookie cutters.” Miller-El II, 545 U.S. at 247 n. 6, 125 S.Ct. 2317. The Miller-El II Court also reiterated that reviewing courts cannot create race-neutral explanations for the prosecution: “It is true that peremptories are often the subjects of instinct, and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and" }, { "docid": "2274921", "title": "", "text": "for challenging black jurors.” Id. at 97, 106 S.Ct. 1712. If that is done, the trial court must determine whether Williams carried his ultimate burden of proving purposeful discrimination. Id. at 98, 106 S.Ct. 1712. Williams first contends that the state courts misapplied the second Batson step. At this phase, any explanation based on something other than race will constitute a race-neutral reason unless discriminatory intent is inherent in that explanation. Hernandez v. New York, 500 U.S. 352, 359-60, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). The reasons must be taken at face value at this step because any determination about the credibility of the explanation is reserved for the third step, where the court ultimately determines whether discrimination occurred. Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). The facial validity of proffered reasons is an issue of law reviewed de novo. Tolbert v. Page, 182 F.3d 677, 680 n. 5 (9th Cir.1999). The prosecutor gave four reasons for striking Juror X: (1) he feared she would identify with Alice Stowe and fail to view Stowe’s testimony objectively; (2) her apparent lack of forthrightness about her prior trial experience; (3) her demeanor evincing bias in favor of the defense; and, (4) her knowledge of the case through press coverage. Williams does not dispute that, taken at face value, these reasons are valid, “based on something other than the race of the juror,” specific to the case, and did not appear to be mere proxies for racial stereotyping or discrimination. Hernandez, 500 U.S. at 360, 111 S.Ct. 1859. They are thus facially valid. Williams argues, however, that in discussing the African American juror who had refused to deliberate in the first trial, the prosecutor gave an additional reason for striking Juror X that the court of appeal failed to recognize as discriminatory. He claims the prosecutor made it clear in those comments that he did not want Juror X on the jury because she was the same race as the recalcitrant juror from the first trial. The context and entirety of the prosecutor’s statement do" } ]

[ { "docid": "12096055", "title": "", "text": "ABERNATHY, Judge: Appellant was tried by special court-martial, military judge alone. Contrary to his pleas, appellant was found guilty of three specifications alleging violations of Article 86, UCMJ, 10 U.S.C. § 886; Unauthorized Absence. Appellant was sentenced to be confined for two months, to forfeit $300.00 pay per month for two months, to be reduced to pay-grade E-1, and to be discharged with a bad-conduct discharge. The convening and supervisory authorities approved the sentence as adjudged. The government’s case-in-chief consisted of (1) the enlistment contract (Pros. Exhibit 1) of the accused showing that he had enlisted in the Naval Reserve for a period of six years and that thirty-six months of that obligation would be spent on active duty, and (2) three pages 1070/606 (Prosecution Exhibits 2, 4 and 5) from the accused’s service record. These latter documents, in addition to establishing commencement and termination dates for the respective absences, also contained an abundance of information from which accused’s active duty status could have been deduced. Additionally, the specifications upon which he was tried each asserted the accused’s status as “U. S. Naval Reserve, USS KINKAID (DD-965) on active duty.” At the conclusion of the government’s case, the defense, which had not contested jurisdiction by means of a motion to dismiss, presented neither a motion for findings of not guilty nor a case-in-chief, resting immediately. The government argued its case and defense declined an opportunity to argue on findings. The following colloquy then transpired: TJ: Well, then the court will request of the government, whether or not it intends to offer evidence to indicate that the accused was on active duty? TC: May the government have a brief recess, Your Honor? TJ: Five minutes. The court will be in recess for five minutes. The Court recessed at 0907 hours, 22 April 1981. The Court was called to order at 0934 hours, 22 April 1981. All parties to the trial who were present when the court recessed were again present in court. TJ: The court will come to order. TC: Your Honor, I’d just like to mark these documents. The last" } ]

[ { "docid": "19984310", "title": "", "text": "Opinion of the Court COX, Judge: Appellant was tried by a general court-martial composed of members and a military judge at the United States Naval Station, Subic Bay, Republic of the Philippines, during May and June 1981. Contrary to his pleas, he was found guilty of an unauthorized absence of 20 days and two specifications of perjury, in violation of Articles 86 and 131, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 931, respectively. He was sentenced to a bad-conduct discharge, confinement at hard labor for 1 year, total forfeitures, and reduction to the lowest enlisted pay grade. The convening authority approved the sentence as adjudged, and the United States Navy-Marine Corps Court of Military Review affirmed. 15 M.J. 633 (1982). This Court granted review on the following issues: I WHETHER THE MILITARY JUDGE ERRED, TO THE PREJUDICE OF THE APPELLANT’S SUBSTANTIAL RIGHTS, BY REFUSING TO RECUSE HIMSELF. II WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING THE MEMBERS, OVER STRENUOUS DEFENSE OBJECTION, THAT A PUNITIVE DISCHARGE MAY AFFECT AN ACCUSED’S FUTURE WITH REGARD TO HIS LEGAL RIGHTS, ECONOMIC OPPORTUNITIES AND SOCIAL ACCEPTABILITY, VICE A PUNITIVE DISCHARGE WILL CLEARLY AFFECT AN ACCUSED’S FUTURE WITH REGARD TO HIS LEGAL RIGHTS, ECO-. NOMIC OPPORTUNITIES AND SOCIAL ACCEPTABILITY. We hold that the military judge did not err by refusing to recuse himself in this case and that any error in his sentencing instructions was harmless. Article 59(a), UCMJ, 10 U.S.C. § 859(a). Accordingly, we affirm. The charges involved here arose out of an earlier special court-martial tried by the same military judge without members. The Court of Military Review found the following facts concerning the earlier court-martial: The record of trial reveals that the military judge was also the military judge who presided over the special court-martial from which the current charges originated. (R.49-50). At that special court-martial, the military judge, contrary to appellant’s pleas and testimony, found him guilty of a violation of Article 121, UCMJ, 10 U.S.C. § 921, in the theft of six pistons and one air cooler, and sentenced appellant, in absentia, to confinement at hard labor for" }, { "docid": "12081062", "title": "", "text": "EDWARDS, Judge: This case originally came before us without specific assignment of error. We have asked appellate counsel for, and received, briefs on the issue of appropriateness of the sentence. In carrying out our statutory duties, we must be convinced that the findings and sentence are correct in law and fact. We have no quarrel with our brother in his concurring/dissenting opinion that such duty requires us not to approve any sentence which, in view of the entire record, we conclude is not fair and just. Article 66c, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c). In the instant case, we find the sentence to be fair and just. At his general court-martial convened on 2 August 1979, the appellant on his pleas was found guilty of an unauthorized absence of approximately 56 days and larceny of another Marine’s automobile, in violation of Articles 86 and 121, UCMJ, 10 U.S.C. §§ 886 and 921. He was sentenced to confinement (at hard labor for 2 years, to forfeit all pay and allowances, to be reduced to pay grade E-l, and to be discharged from the U. S. Marine Corps with a dishonorable discharge. The sentence as adjudged was approved on review below. Prior to sentencing, evidence was introduced to show that Private First Class Usry was 19 years of age, had been in the Marine Corps for just short of 2 years, had previously received nonjudicial punishment for possessing a trace amount of marijuana, and had his unauthorized absence terminated by apprehension in Lexington, Georgia. The owner of the stolen automobile testified in substance that he knew the accused; that he was from the same battery as the accused; that in early March of 1979 he had departed Camp Lejeune, North Carolina, for an operation at Fort Bragg, North Carolina, returning on 30 March 1979; that he had left his 1976 Nova automobile in the parking lot behind his barracks; that he had bought the automobile in November 1978 for $2600.00; that when he left for Fort Bragg the automobile was in good condition with no body damage; that" }, { "docid": "12081072", "title": "", "text": "with advice of counsel entered into a pretrial agreement for the sentence eventually awarded by the military judge. We, like those involved in the pretrial negotiations, the sentencing process at trial, and upon prior review (the accused, the military judge and the convening authority), are convinced that the sentence is appropriate. In the instant case, the crime of larceny standing alone, without resort to consideration of the unauthorized absence offense, is properly characterized for discharge purposes as “dishonorable”; the remainder of the sentence is appropriate. Certainly, considering the totality of the circumstances, to include absence of evidence of unfairness of the sentence, the sentence is not disproportionate, nor is there evidence of abuse of the sentencing power, so as to cry out for an effort at sentence equalization. We find that throughout the sentencing process and its prior review due consideration was given to the nature of the offenses, the character of the offender, and the protection of the public interest. We have concluded that the findings and sentence are correct in law and fact and that no error materially prejudical to the substantial rights of the appellant was committed. Accordingly, the findings and sentence as approved on review below are affirmed. Senior Judge GREGORY concurs. GLADIS, Judge (concurring/dissenting): I join the majority in affirming the findings of guilty but dissent from their affirmance of the sentence, because the approved sentence is both unduly severe and inconsistent with the sentences affirmed in similar cases. Cf. United States v. Flint, 50 C.M.R. 865, 870 (A.C.M.R.1975), aff’d, 1 M.J. 428 (CMA 1976) (Congress intended that the military appellate courts strive for uniformity of sentencing.) The accused was convicted pursuant to his guilty pleas at a general court-martial bench trial of unauthorized absence for 56 days and larceny of a 1976 Chevrolet Nova, in violation of Articles 86 and 121, Uniform Code of Military Justice (UCMJ), and sentenced to a dishonorable discharge, confinement at hard labor for 2 years, total forfeitures, and reduction to pay grade E-l. The convening authority approved the sentence adjudged. On the basis of the entire record, I find" }, { "docid": "12030646", "title": "", "text": "GLADIS, Senior Judge: Pursuant to her pleas at a special court-martial bench trial the accused was found guilty of two failures to go, five unauthorized absences, one disobedience of a lawful order, fourteen bad check offenses, and two dishonorable failures to pay just debts, in violation of Articles 86, 92, 123(a), and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 892, 923(a), 934. She was sentenced to a bad conduct discharge, confinement at hard labor for 3 months, forfeiture of $300.00 per month for 5 months, and reduction to pay grade E-l on 16 September 1982. The convening authority approved the sentence, but suspended confinement in excess of 45 days on 22 October 1982. The supervisory authority approved the sentence as approved by the convening authority on 13 May 1983, 238 days after the trial. The special court-martial order promulgating the results of trial was issued on 9 June 1983. We remanded the case for a supplemental staff judge advocate’s review and new supervisory authority’s action on 27 December 1983. The supervisory authority took his new action on 27 February 1984. The accused contends on appeal that, first, she has been denied her right to speedy review where 238 days elapsed between the date of trial and the date of the supervisory authority’s action in a case involving, guilty pleas, a pretrial agreement, a 66 page record of trial, no motions or complicated issues, an unsatisfactory explanation for the delay, and substantial prejudice because of the delay, and, second, an unsuspended bad conduct discharge is inappropriate. We disagree and affirm. Speedy Review Inordinate and unexplained delay in the review of a court-martial warrants dismissal of the charges, at least, charges which are not considered serious, if the accused has been prejudiced by the delay. United States v. Clevidence, 14 M.J. 17 (C.M.A.1982). An accused on appellate leave who has been hindered in finding adequate employment because potential employers are concerned that he/she may be recalled to active duty has been prejudiced. Id., United States v. Sutton, 15 M.J. 235 (C.M.A.1983). Delay occasioned by administrative bungling and indifference will" }, { "docid": "18913436", "title": "", "text": "OPINION MORGAN, Chief Judge: Seaman Recruit Victor G. Clevidence, III, U.S. Coast Guard was tried by a special court-martial convened by the Commanding Officer, U.S. Coast Guard Cutter YOCONA (WMEC 168) on 11, 12 and 13 April 1979. He pleaded not guilty to two offenses of failing to go to his appointed place of duty in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886, not guilty to an offense of disrespectful behavior toward his superior officer in violation of Article 89, UCMJ, 10 U.S.C. § 889 and not guilty to three offenses of failure to obey orders in violation of Article 92, UCMJ, 10 U.S.C. § 892. He pleaded guilty to another offense of failure to obey a lawful order in violation of Article 92. The court-martial members found the accused guilty as charged. Evidence of seven prior punishments pursuant to Article 15, UCMJ, for various offenses was introduced and the members sentenced the accused to be confined at hard labor for three months, to forfeit $279.00 per month for three months and to be discharged from the service with a bad conduct discharge. This sentence was approved by the convening authority and by the officer exercising general court-martial jurisdiction. Appellate defense counsel has asked us to disapprove the sentence to a bad conduct discharge because the accused was denied his right to a speedy review of his case; because the legal officer’s review was inadequate; and, because a sentence to bad conduct discharge is inappropriate for Seaman Recruit Clevidence. During our examination of the record, we also noted with respect to the legal officer’s review that it was signed by a law specialist other than the district legal officer who had not been designated in writing for the purpose as required by Section 0510-1 of the Coast Guard Military Justice Manual, CG-488. Article 65(b), UCMJ, 10 U.S.C. § 865(b), incorporating some of the requirements of Article 61, 10 U.S.C. § 861, provides that the record of a trial by special court-martial in which a sentence including a bad conduct discharge has been approved by" }, { "docid": "7463314", "title": "", "text": "OPINION OF THE COURT HAESSIG, Judge: A military judge sitting as a general court-martial convicted the appellant, consistent with his pleas, of two specifications of absence without leave in violation of Article 86, Uniform Code of Military Jus tice 10 U.S.C. § 886 (1982) [hereinafter UCMJ]. The appellant’s approved sentence includes a bad-conduct discharge, confinement for six months, forfeiture of $500.00 pay per month for six months, and reduction to the lowest enlisted grade. The appellant asserts, inter alia, that he was subjected to unlawful pretrial punishment in violation of Article 13, UCMJ, 10 U.S.C. § 813, and that as a result he is entitled to meaningful sentence relief. We agree. The record of trial reflects that prior to trial, and as a result of his absences without leave, the appellant was, inter alia, subjected to public denunciation and military degradation by being called to the front of a unit formation by the unit first sergeant and sarcastically referred to by the first sergeant as “my favorite AWOL case.” The government did not rebut the allegation. The United States Court of Military Appeals and this Court have unequivocally condemned conduct by those in positions of authority which result in needless military degradation, or public denunciation or humiliation of an accused. United States v. Cruz, 25 M.J. 326 (C.M.A.1987); United States v. Villamil-Perez, 32 M.J. 341 (C.M.A.1991); United States v. Fitzsimmons, 33 M.J. 710 (A.C.M.R.1991); United States v. Hatchett, 33 M.J. 839 (A.C.M.R.1991). We do so again here and will provide the appellant with meaningful relief in our decretal paragraph. In light of the relief we will grant to the appellant we need not address his other assignment of error. The findings of guilty are affirmed. Using our authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to reassess the sentence, based on the error noted, the entire record, and United States v. Sales, 22 M.J. 305 (C.M.A.1986), the Court affirms only so much of the sentence as provides for a bad-conduct discharge, confinement for six months, and reduction to the grade of Private El. Senior Judge De GIULIO concurs. ." }, { "docid": "8682257", "title": "", "text": "the conduct must have disgraced or dishonored the accused in his or her official capacity. See Article 133, UCMJ; see also MCM pt. IV, para. 59.c(2); United States v. Taylor, 23 M.J. 314, 318 (C.M.A.1987) (“The test [for Article 133, UCMJ] is whether the conduct has fallen below the standards established for officers.”); United States v. Marsh, 15 M.J. 252, 253-54 (C.M.A.1983) (finding that unauthorized absence is a “peculiarly military” offense, or an offense “to which disputed factual issues about the accused’s status as a servicemember must be decided by the trier of fact as part of the determination of guilt or innocence and as to which the Government bears the burden of proof beyond reasonable doubt” and which “by its express terms, the statutory prohibition applies only to a member of the armed forces”) (quotation marks omitted). It ineluctably follows that Article 133, UCMJ, is a purely military offense when it constitutes the underlying criminal offense for housebreaking. Only a commissioned military officer, cadet, or midshipman can commit the offense and it is only a court-martial that has jurisdiction to prosecute such an offense. Giordano, 15 C.M.A. at 168, 35 C.M.R. at 140 (“Conduct unbecoming an officer has long been recognized as a military offense_”). Article 133, UCMJ, therefore cannot serve as the underlying criminal offense in a housebreaking charge. III. Lesser Included Offense of Unlawful Entry The question now presented is whether we may nonetheless affirm the lesser included offense of unlawful entry in this case. “Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense.” Article 59(b), UCMJ, 10 U.S.C. 859(b) (2000); United States v. Medina, 66 M.J. 21, 24 (C.A.A.F.2008). “An accused may be found guilty of an offense necessarily included in the offense charged....” Article 79, UCMJ, 10 U.S.C. 879 (2000). Where an offense is a lesser included offense of the charged offense, an accused is by definition on notice because it is a subset of the greater offense alleged. However, where a distinct offense" }, { "docid": "12089419", "title": "", "text": "DUNBAR, Senior Judge: On 29 December 1977 and the 6th and 9th of January 1978, the appellant was tried by general court-martial at Camp Lejeune, North Carolina, for larceny of $471.00, in violation of Article 121 of the Uniform Code of Military Justice, 10 U.S.C. § 921, and for two periods of unauthorized absence, in violation of Article 86 of the Uniform Code of Military Justice, 10 U.S.C. § 886. Consistent with his plea to the larceny charge and contrary to his pleas with respect to the unauthorized absences, the appellant was found guilty, and a court consisting of members sentenced him to be discharged with a bad-conduct discharge, to be confined at hard labor for 2 years, and to forfeit all pay and allowances. On 7 April 1978 the convening authority approved the sentence as adjudged. Trial defense counsel challenged the sufficiency of the larceny charge and its specification based on United States v. Alef, 3 M.J. 414 (C.M.A.1977). The military judge, without hearing argument, found Alef inapplicable to the situation and denied the motion. Trial defense counsel chose to abstain from similar motions regarding the remaining charges. Appellant claims this Court should note that the specifications alleged were taken directly from Appendix 6 of the Manual for Courts-Martial, United States, 1969 (Revised edition), and that even the staff judge advocate, well before trial, was aware the charges were defective. Moreover, appellant alleges that the Government in this case, by failure to plead jurisdiction, did what the Court of Military Appeals specifically mandated against in Alef. He petitions that we set aside the findings and sentence and order a rehearing. Appellant thus asserts that the United States Court of Military Appeals has made it a mandatory practice for the Government to affirmatively demonstrate jurisdiction over an accused and the alleged offenses through the sworn charges. He further alleges the Chief Judge of the High Court noted in the Alef opinion that the specification format set forth in Appendix 6 of the Manual for Courts-Martial, United States, 1969 (Revised edition) does not present sufficient information to demonstrate military jurisdiction over" }, { "docid": "16014361", "title": "", "text": "BARR, Judge: Appellant, a member of the United States Naval Reserve on active duty, was tried by special court-martial on charges of desertion (Charge I) and breaking restriction (Charge II), violations of Articles 85 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 885, 934, respectively. Pursuant to his pleas, he was found guilty of the lesser offense of unauthorized absence for a period of approximately 29 months, in violation of Article 86, UCMJ, 10 U.S.C. § 886, and breaking restriction. During the providence inquiry into both offenses, United States v. Care, 18 U.S.C. M.A. 535, 40 C.M.R. 247 (1969), the appellant acknowledged his active duty status and thereby established, even though not raised as a matter in issue, the jurisdiction of the trial court to try him as a person subject to the reach of Article 2(a)(1), UCMJ, 10 U.S.C. § 802(a)(1). As to the offense of breaking restriction, the appellant recited those facts and circumstances sufficient to find that he was duly placed in restriction by competent authority, that he had knowledge of his status and the limits of restriction, and that he went beyond those limits without authority. The military judge sentenced the appellant to the jurisdictional maximum punishment of a special court-martial. The convening authority approved the sentence, but suspended the bad-conduct discharge and confinement in excess of 90 days, notwithstanding the presence of five prior nonjudicial punishments and a previous conviction by special court-martial. On appeal, and in response to the assertions by appellant that his conviction of Charge II, breaking restriction, is invalid, the government moved for oral argument before this Court, reciting the importance to the naval service of the issues addressed. As one of the assignments of error involved an interpretation of both the reach and the remedy of United States v. Alef, 3 M.J. 414 (C.M.A.1977), we granted the motion for oral argument. The offending charge and specification reads: In that Seaman Apprentice Russell A. Hatley, U.S. Naval Reserve, USS MANITOWOC (LST-1180), having been duly restricted to the limits of the USS MANITOWOC (LST-1180), Little Creek, Norfolk, Virginia, did," }, { "docid": "1868579", "title": "", "text": "Opinion of the Court Kilday, Judge: Upon his plea of guilty, accused was convicted by special court-martial for four specifications of unauthorized absence and two additional counts of breaking restriction, violative of Articles 86 and 134, Uniform Code of Military Justice, 10 USC §§ 886 and 934, respectively. The court-martial sentenced him to bad-conduct discharge, partial forfeitures and confinement at hard labor for six months, and reduction. Thereafter the record was reviewed by the convening authority. In his action, he took cognizance of an error at trial, as follows: “In the foregoing case ... it is noted that the president of the court asked the accused several questions after defense counsel had made an unsworn statement on behalf of the accused. This was error. There is no indication that the court was attempting to enter into the trial of the case, nor is there any indication that the court was questioning the accused’s explanation or expressing disbelief or hostility toward the ac cused. The error could affect only the sentence and under the circumstances it is considered that any prejudice which may have resulted can be corrected by a reassessment of the sentence.” In light of that incident, the convening authority purported to purge the error of prej'udice by reassessing accused’s punishment. He reduced the period of forfeitures and confinement to four months, but otherwise approved the findings and sentence. The officer exercising general court-martial jurisdiction and a board of review in the office of The Judge Advocate General of the Navy subsequently affirmed, and accused petitioned this Court for grant of review. We elected to hear argument on a single issue, to determine whether the convening authority’s action cured the error committed by the president of this special court. The right of an accused to make an unsworn statement in extenuation and mitigation during the sentence proceedings, in person or through counsel, and not subject to cross-examination, is well established. United States v Stivers, 12 USCMA 315, 30 CMR 315; United States v King, 12 USCMA 71, 30 CMR 71; Manual for Courts-Martial, United States, 1951, paragraph 75c (2)." }, { "docid": "14140170", "title": "", "text": "DUNBAR, Senior Judge: On 1 and 22 November 1978 appellant was tried by a special court-martial consisting of military judge alone. Convicted, contrary to his pleas, of unauthorized absence in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886, appellant was subsequently sentenced to confinement at hard labor for 60 days, to reduction to E-.l, and a bad-conduct discharge. The convening authority approved the sentence but suspended execution of the punitive discharge for 6 months. The supervisory authority also approved the sentence. As his first assignment of error, appellant claims certain irregularities exist with regard to Prosecution Exhibit 2. That exhibit, an “Offenses and Punishments” form (page 12), reflects the date 26 February 1978, followed by an entry noting that appellant received nonjudicial punishment for assault and possession of an illegal weapon. It also reflects the punishment he received for the offense. Attached immediately above Prosecution Exhibit 2 is a form evincing a waiver by appellant of his right to removal of offenses from Article 15 to trial by courts-martial. A provision at the bottom of the form states that the form relates to nonjudicial punishment conducted on 15 February 1978. Appellant asserts that there is no evidence that there is any connection between the waiver form and the page 12 entry. We disagree. Trial counsel submitted both documents to the defense counsel for possible objection. (R. 49). The military judge then asked defense counsel if he would stipulate the “Offenses and Punishments” form to be a true copy of the accused’s page 12. Defense counsel so stipulated. In the absence of an objection by defense counsel that the two documents were unrelated and therefore prejudicial to the accused, we will infer regularity in their preparation and submission as exhibits properly before the court. Paragraph 114b, Manual for Courts-Martial, 1969 (Rev.). In his second assignment of error, appellant asserts that the staff judge advocate review incorrectly indicated that the accused pleaded guilty to the single charge and specifications. There is little question that this was a simple and unintentional misstatement of fact. On page 1 of" }, { "docid": "12097417", "title": "", "text": "court, which will credit appellant with time spent in confinement between the sealing of the sentence and its later announcement. If the confinement has been entirely served, forfeitures may be appropriately reassessed. Chief Judge EVERETT concurs. . Appellant was tried by a special court-martial for absence without leave and willfully damaging private property, in violation of Articles 86 and 109, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 909, respectively. Contrary to his pleas, he was convicted of AWOL and six specifications of damaging property. He was sentenced to a bad-conduct discharge, confinement for 4 months, and forfeiture of $250 pay per month for 4 months. The convening authority approved the sentence. On September 22, 1980, the Court of Military Review set aside the findings of guilty as to the AWOL offense, dismissed the charge, and reassessed the sentence to a bad-conduct discharge, confinement for 4 months, and forfeiture of $250 pay per month for 2 months. . UCMJ, 10 U.S.C. § 839(a). . See United States v. Heflin, 1 M.J. 131 (C.M.A.1975), and its progeny. . United States v. Jenkins, 12 M.J. 222 (C.M.A.1982). . Article 59(a), UCMJ, 10 U.S.C. § 859(a). . While this “sealing” procedure was employed to allow appellant judicial review of his administrative appeal, we cannot allow the resultant increase of pretrial confinement to be utilized as punishment. Article 13, UCMJ, 10 U.S.C. § 813. COOK, Judge (concurring in the result): I concur with that part of the opinion which concludes “that under Article 57(b), UCMJ, 10 U.S.C. § 857(b), the four months of confinement awarded began to run from the day this feature of his sentence was selected by the court members.” (Footnote omitted)." }, { "docid": "12103851", "title": "", "text": "testimony. In 1975, the Court of Military Appeals ruled that the question whether to permit evidence of a conviction for the purpose of impeaching an accused who testifies is a matter within the discretion of the military judge. Several important considerations for the judge are set forth in the opinion. “[Wjhere a period of 10 years or less has elapsed since the date of the conviction . , the accused has the burden of persuasion to show that the prejudicial effect of impeachment outweighs the probative value of the prior conviction to the issue of credibility.” No attempt at such a showing has been made by the defense in this case, either at the trial or on this appeal. Accordingly, the defense has not met the burden of persuasion cast upon it by Weaver. The findings of guilty and the sentence are affirmed. Judge CLAUSE and Judge FOREMAN concur. . Violations, respectively, of Articles 134 and 86 of the Uniform Code of Military Justice, 10 U.S.C. §§ 934, 886 (1976). . Article 66(b), Uniform Code of Military Justice, 10 U.S.C. § 866(b) (1976). . United States v. Krewson, 8 M.J. 663, 665 (A.C.M.R.), pet. granted on other grounds, 9 M.J. 63 (C.M.A. 1980); see Manual for Courts-Martial, United States, 1969 (Revised edition), par. 75b (2). . Manual for Courts-Martial, supra, par. 75c. . Burglary is an offense involving moral turpitude. United States v. Weaver, 1 M.J. 111, 115 (C.M.A. 1975). . United States v. Olson, 7 U.S.C.M.A. 242, 244, 22 C.M.R. 32, 34 (1956). . Manual for Courts-Martial, supra par. 75c (2). . The principal case upon which he relies is United States v. Miller, 1 M.J. 798 (A.F.C.M.R. 1976), which deals with testimony on the merits and does not reach the question of testimony relevant to sentencing. One of the two cases cited in Miller as direct authority is United States v. Shipman, 9 U.S.C.M.A. 665, 26 C.M.R. 445 (1958), which indicates (without explanatory rationale) that an accused charged with both larceny and unauthorized absence, but who limits his testimony on the merits to only the absence offense, should" }, { "docid": "12031603", "title": "", "text": "BYRNE, Judge: Appellant, convicted, contrary to his pleas, by a special court-martial, military judge alone, of a 171-day unauthorized absence in violation of Article 86 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 886, assigns the following error: THE PROSECUTION FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT WAS A RESERVIST ON ACTIVE DUTY AT THE TIME OF THE ALLEGED UNAUTHORIZED ABSENCE. We believe the assignment of error lacks merit. The specification alleged that appellant was in the “U. S. Naval Reserve, on active duty.” To prove the unauthorized absence, two exhibits were received into evidence: an enlistment contract indicating the commencement of a 6 year enlistment in the Naval Reserve (DD Form 4/1; Enlistment/Reenlistment Document-Armed Forces of the United States), and a service record entry (Record of Unauthorized Absence). The service record entry alleged that the appellant was AWOL from the USS KITTY HAWK (CV-63) from 0001, 27 May 1980 until he surrendered at 0800 on 15 November 1980. It further stated that the appellant was absent from the USS KITTY HAWK, (entry 19, Prosecution Exhibit 2), and that he had failed to report to that ship not later than 2400 on 26 June 1980 (entry 49, Prosecution Exhibit 2). One of the elements of unauthorized absence is: (a) That the accused absented himself for a certain period from his unit. (Emphasis supplied.) Paragraph 165, Manual for Courts-Martial, 1969 (Rev.) (Manual). A service record entry, even when rebutted, has been accorded sufficient weight to convict an accused. United States v. Demings, 22 U.S.C.M.A. 483, 47 C.M.R. 732 (1973). The service record entry in this case is unrebutted. Appellant, obviously, could not have been an unauthorized absentee from the USS KITTY HAWK unless he had been on active duty on the inception date of his unauthorized absence. Consequently, we hold that the service record entries circumstantially establish that the accused was on active duty on the inception date of his unauthorized absence. Cf. United States v. Hedges, 16 C.M.R. 412, 415 (N.C.M.R.1954). The litigation of the merits encompassed a waiver of opening statement by both counsel," }, { "docid": "22961041", "title": "", "text": "367. We assume that had trial counsel here anticipated what Baker later announced, the Government would have prosecuted appellant only for the offense which authorized the greater maximum punishment. In this case, because of the very short duration of each unauthorized absence, each Article 86 violation is punishable to the same extent as is each breach of restriction. In this case, then, where there is no difference in the authorized maximum punishment, we will dismiss the lesser-included offense. Under paragraph 127e, Table of Maximum Punishments, Manual, supra, the findings of guilty which can be affirmed would sustain a sentence exceeding the jurisdictional limits of the court-martial which tried Doss. Moreover, we are convinced from all the circumstances — including his record of nonjudicial punishments for prior unauthorized absences shortly before the instant offenses and his unsworn statement to the military judge that he wanted a discharge — -that appellant’s sentence was not enhanced by the failure to set aside the multiplicious findings. Accordingly, no relief as to the sentence is required in this case. Ill The decision of the United States Navy-Marine Corps Court of Military Review is reversed as to Charge I and its two specifications; the findings of guilty of Charge I and its two specifications are set aside and Charge I is dismissed. In all other respects the decision is affirmed. Judge FLETCHER concurs. . Originally, the willful disobedience was charged under Article 92, Uniform Code of Mil itary Justice, 10 U.S.C. § 892; but at trial it was amended over defense objection to allege a violation of Article 91. . The Chief Petty Officer later testified that he “did not order him not to leave the ship. I just instructed him that he could not leave the ship without the CDO’s permission.” . Although appellant had been in the Navy for approximately four years, the three nonjudicial punishments had all occurred within three weeks before his ship had docked at Mayport. He had no prior court-martial convictions (the Court-Martial Order does not reflect this fact on page 2 under SENTENCE). It is true that compromise is" }, { "docid": "15254271", "title": "", "text": "Opinion of the Court EVERETT, Chief Judge. A special court-martial tried appellant on charges that (a) he had deserted from his unit, the USS GARCIA (FF1040) at Charleston, South Carolina, on August 19, 1981, and remained absent until his apprehension on March 5, 1982, in violation of Article 85, Uniform Code of Military Justice, 10 U.S.C. § 885; and (b) he had through design missed the movement of the USS GARCIA on August 19, 1981, in violation of Article 87, UCMJ, 10 U.S.C. § 887. Pursuant to his pleas, appellant was convicted by exceptions and substitutions of the lesser-included offenses of unauthorized absence during the period alleged, in violation of Article 86, UCMJ, 10 U.S.C. § 886, and of missing movement through neglect, in violation of Article 87. During the providence inquiry into his tendered pleas of guilty, Murray revealed that he had left his ship, the USS GARCIA, during daytime working hours on August 19, 1981, and had not returned to military control until March 5, 1982, when South. Carolina law enforcement authorities apprehended him on behalf of the Navy. Also, it was established that, while appellant was absent, the USS GARCIA had sailed for operations in the North Atlantic and that appellant had missed this movement. Thus, to prove that appellant had missed the movement of his ship, the Government necessarily relied on proof of appellant’s unauthorized absence from that ship — at least, on the date of the movement. Under similar circumstances, this Court held in United States v. Posnick, 8 U.S.C.M.A. 201, 204, 24 C.M.R. 11, 14 (1957), “that the offense of unauthorized absence is a necessarily included lesser offense of the offense of missing movement.” The Court reasoned: Logically, every missing movement offense includes an unauthorized absence plus other factors. These additional fac tors are circumstances that aggravate the offense of unauthorized absence. In these cases the unit, ship, or aircraft, is moving and the accused has knowledge of this movement. The offense can be further aggravated by the subjective cause of the accused’s absence — neglect or design. The fact that the absences are" }, { "docid": "12089440", "title": "", "text": "the Americans. It was impossible to convince Hitler that these were tough opponents, soldiers as good as our own men.” [Emphasis supplied.] Albert Speer, INSIDE THE THIRD REICH, Chapter 28. GLADIS, Judge (concurring in the result): I concur in the result reached by the majority because I find, for the reasons set forth below, that, contrary to the contentions of the accused, the specifications meet the pleading requirements of United States v. Alef, 3 M.J. 414 (C.M.A.1977). In addition, insofar as the attempts to remold the military justice system are contrary to and undermine the clearly expressed intent of Congress, acting pursuant to its constitutional authority, I join my brothers in condemning those attempts. Sufficiency of the Specifications A general court-martial with officer members convicted the accused, in accordance with his pleas, of larceny in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921, and, contrary to his pleas, of two unauthorized absences in violation of Article 86, UCMJ, 10 U.S.C. § 886. The convening authority approved the sentence, which consists of a bad-conduct discharge, confinement at hard labor for 2 years, and total forfeitures. Among other things, the accused contends on appeal that the Government failed to demonstrate affirmatively, through the sworn charges, the jurisdictional basis for trial of the accused and his offenses. See United States v. Alef, supra. I cannot agree. The unauthorized absence specifications in this ease allege that the accused, a private in the U. S. Marine Corps, absented himself from his named unit on or about the dates specified until the dates specified. The larceny specification alleges that the accused, a private in the U. S. Marine Corps, did at Marine Corps Base, Camp Lejeune, North Carolina, steal a specified amount from a named victim on a specified date. United States v. Alef, supra, requires that the Government affirmatively demonstrate through sworn charges/indictment the jurisdictional basis for trial of the accused and his offenses. An indictment is sufficient if the necessary facts appear in any form or by fair construction can be found within the terms of the specifications. Cf." }, { "docid": "18469892", "title": "", "text": "Pt. IV, ¶ 10.c.(5)(MCM), United States (2005 ed.). When a potential defense is raised, “the military judge should explain such a defense to the accused and should not accept the plea unless the accused admits facts which negate the defense.” Rule for Courts-Martial 910(e) Discussion, MCM, United States (2005 ed.). In this case, Appellant stated that he was in jail at the time he was alleged to be absent without authority. (R. at 49-50.) The providence inquiry made explicit that Appellant was not free to return to Training Center Yorktown until he was released by local authorities, yet the stipulation of fact indicated Appellant’s absence “was of his own free will.” (R. at 49; Prosecution Ex. 1 at 3.) The military judge did not recognize the inconsistency and the potential defense to a charge of unauthorized absence. He erred by neither explaining the potential defense nor otherwise addressing and resolving this issue before accepting Appellant’s plea to this specification. As there is nothing in the record from which we may conclude that Appellant actually committed the offense for which he was detained, we are left with unresolved matter inconsistent with the plea of guilty, preventing us from affirming the finding of guilty of the specification of unauthorized absence on 13 February 2004. Decision We have reviewed the record in accordance with Article 66, UCMJ, 10 U.S.C. § 866. As indicated, we have determined that the plea of guilty to a violation of Article 86, UCMJ, alleged in Specification 3 of Charge II was improperly accepted. The finding of guilty of that specification is set aside. We have determined that the remaining findings of guilty as approved by the Convening Authority are correct in law and fact; they are affirmed. We now reassess the sentence in light of the reduced guilty findings. We may affirm only so much of the sentence as we believe the military judge would have adjudged in the absence of the error we are now correcting; if we are unable to determine what that would have been, we must order a rehearing on sentence. United States v." }, { "docid": "12097416", "title": "", "text": "accuracy. An inspection of the worksheet itself, found in the record, fails to reveal any error or ambiguity. Here there was no risk that the sentence awarded by the court members was, to any degree, inaccurately reflected in this unusual “sealing” procedure. Nevertheless, appellant urges that due to this sealing procedure, he has been specifically prejudiced by additional days of confinement. While we do not rule on his allegation of nineteen days, we do conclude that under Article 57(b), UCMJ, 10 U.S.C. § 857(b), the four months of confinement awarded began to run from the day this feature of his sentence was selected by the court members. Use of the erroneous “sealing” procedure while appellant continued in so-called pretrial confinement has considerably lengthened appellant’s punishment beyond that contemplated by the court-martial. Therefore, while we affirm the decision of the United States Army Court of Military Review as to findings, we must reverse the decision as to sentence and return the record of trial to the Judge Advocate General of the Army for remand to that court, which will credit appellant with time spent in confinement between the sealing of the sentence and its later announcement. If the confinement has been entirely served, forfeitures may be appropriately reassessed. Chief Judge EVERETT concurs. . Appellant was tried by a special court-martial for absence without leave and willfully damaging private property, in violation of Articles 86 and 109, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 909, respectively. Contrary to his pleas, he was convicted of AWOL and six specifications of damaging property. He was sentenced to a bad-conduct discharge, confinement for 4 months, and forfeiture of $250 pay per month for 4 months. The convening authority approved the sentence. On September 22, 1980, the Court of Military Review set aside the findings of guilty as to the AWOL offense, dismissed the charge, and reassessed the sentence to a bad-conduct discharge, confinement for 4 months, and forfeiture of $250 pay per month for 2 months. . UCMJ, 10 U.S.C. § 839(a). . See United States v. Heflin, 1 M.J. 131 (C.M.A.1975)," }, { "docid": "10927408", "title": "", "text": "OPINION MORGAN, Chief Judge: Seaman Apprentice Ronald N. Quarles, USCG, was tried by special court-martial at U. S. Coast Guard Yard, Baltimore, Maryland on 1 and 2 May 1979. He pleaded guilty to and was convicted of specifications alleging unauthorized absence, respectively, of less than four hours on 23 November 1978 and from 29 November 1978 until 24 March 1979 in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. He also pleaded guilty to and was convicted of breach of restriction on 23 November 1978 in violation of Article 134, UCMJ, 10 U.S.C. § 934, but the military judge vacated the finding of guilty and dismissed that charge and specification because it was multiplicious with the first absence offense. The members sentenced the accused to be confined at hard labor for three months, to be reduced to pay grade E-l and to be discharged from the service with a bad conduct discharge. The convening authority approved the sentence. The officer exercising general court-martial jurisdiction remitted the reduction in grade and suspended execution of the bad conduct discharge for a probationary period of three months. Appellate defense counsel urges that the findings of guilty and the sentence should be set aside and the charges dismissed due to inordinate delay in the review process. In support of this contention counsel points out that the accused served 37 days of pretrial confinement and 79 days of the sentence to confinement; the convening authority did not take action on the record until 89 days after sentence was adjudged; the officer exercising general court-martial jurisdiction took no action for another 252 days; and, this latter official did not account for the delay as required by Section 506-5(b) of the Coast Guard Military Justice Manual, CG-488. Additionally, counsel argues that the accused was prejudiced by the delay since his posttrial command desired to advance him to pay grade E-3 in January 1980 but was precluded from doing so until the officer exercising general court-martial jurisdiction finally took action on the record some three months later on 8 April 1980. This record" } ]

[ { "docid": "22922644", "title": "", "text": "on the result we would reach where the offense was significantly less serious, or where the daily fees or total debt were significantly higher. Cf. Ilkanic, 705 So.2d at 1372-73 (rejecting due process and equal protection challenges to statute that provided for assessment of $50.00 per day for “damages and losses for incarceration costs and other correctional costs”). Under the circumstances presently before us, however, we conclude as a matter of law that the amounts were not “excessive” under the Eighth Amendment. B. Fourteenth Amendment 1. Due Process Under procedural due process, the plaintiffs interest must fall within the scope of “life, liberty, or property.” Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). The defendants properly concede that the plaintiff has a property interest in his prison account, Reynolds, 128 F.3d at 179, but insist that he was provided with adequate procedural due process. We agree. In considering, a due process claim, we look to the private interest, the governmental interest, and the value of the available procedure in safeguarding against an erroneous deprivation. Id.; see also Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Due process “ ‘is flexible and calls for such procedural protections as the particular situation demands’ ” in order to “minimize] the risk of error.” Greenholtz v. Inmates of the Nebraska Penal and Corr. Complex, 442 U.S. 1, 12-13, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). “The amount of notice due depends on the context.” Reynolds, 128 F.3d at 179 (citing Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 1812, 138 L.Ed.2d 120 (1997)). In some cases, takings of property by the State require predeprivation notice and a hearing. Parratt v. Taylor, 451 U.S. 527, 538, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other gds., Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). But where the State must take quick action, or where it is impractical to provide meaningful predeprivation" } ]

[ { "docid": "23676598", "title": "", "text": "risk of error.” Greenholtz v. Inmates of the Neb. Penal and Corr. Complex, 442 U.S. 1, 12-13, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Furthermore, “[t]he amount of notice due depends on the context.” Reynolds v. Wagner, 128 F.3d 166, 179 (3d Cir.1997). The Supreme Court requires lower courts to consider three factors when determining if procedures are constitutionally sufficient: (1) the private interest to be affected by the action; (2) the risk of erroneous deprivation of that interest through the procedures that were used and the probable value of added procedures; and (3) the government’s interest, including the fiscal and administrative burdens of added procedures. Mathews, 424 U.S. at 335, 96 S.Ct. 893. The Jail concedes that Slade has a property interest in the one dollar per day that it removed from his account. This property interest, however, is limited because Virginia law provides that a pretrial detainee must be brought to trial within five months of a probable cause hearing, a fact that means the one dollar per day charge will be imposed for only a limited period. Va.Code Ann. § 19.2-243 (Michie 2004). The Jail, as discussed, has a legitimate interest in attempting to defray the costs of a prisoner’s keep and a legitimate interest in the collection of the fee. There is also little risk of erroneous deprivation that a pre-deprivation hearing would ameliorate. The daily deduction of the charge from the prisoner’s account is a ministerial matter with no discretion and minimal risk of error. See Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 422 (3d Cir.2000) (noting that collection of a housing cost “involve [d] routine matters of accounting, with a low risk of error”). “[T]o require pre-deprivation proceedings for what are essentially ministerial matters would significantly increase transaction costs and. essentially frustrate an important pui'pose of the program, which is to reduce the [Jail’s] costs of incarcerating prisoners.” Id. Accordingly, we do not believe that procedural due process rer quires a pre-deprivation hearing before the charge is deducted from a prisoner’s account. We do not believe that Slade’s complaint fairly presents a" }, { "docid": "13248308", "title": "", "text": "him beyond 10 years on the ground that he had violated a prison regulation. But the liberty interest in being released on parole would not qualify for due-process protection if there were no substantive predicates that mandated release, as when “there is no set of facts which, if shown, mandate a decision favorable to the [inmate].” Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Plaintiffs argue that the grand-jury statute creates an entitlement because it mandates notice to the grand-jury target when specified predicates (that notice will not result in flight, obstruction of justice, or danger to another person) are satisfied. But even if notice is an entitlement under state law, Plaintiffs have failed to state a due-process claim. That is because an entitlement is protected by the Due Process Clause only if it is an interest in life, liberty, or property; and not all entitlements are such interests. For example, often a prisoner’s entitlements are not liberty interests. A state law may mandate when a prisoner can be segregated from the general prison population or otherwise subject to special conditions of confinement. But the Due Process Clause imposes no procedural constraints on a prison official in ordering special conditions of confinement unless the official “imposes atypical and significant hardships on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Any lesser hardship does not rise to the level of a deprivation of liberty for one whose freedom has already been lost through conviction of a crime. See id. at 484-86, 115 S.Ct. 2293. What constitutes a liberty or property interest within the meaning of the Fourteenth Amendment is not always easy to determine. The concepts should not be given a narrow construction. “ ‘Liberty’ and ‘property’ are broad and majestic terms ... [that] relate to the whole domain of social and economic fact.” Roth, 408 U.S. at 571, 92 S.Ct. 2701. But they are not unlimited in scope. In particular, the" }, { "docid": "22425231", "title": "", "text": "possible to further legitimate penological interests. See Thornburgh, 490 U.S. at 411, 109 S.Ct. 1874. Additionally, we reiterate the unique problem that these fraudulent financing statements pose: Although the perpetrator can file the lien with relative ease, the victim must go through a complicated ordeal, such as to seek judicial action, in order to remove the lien. A court order to expunge the lien does not end the ordeal, as oftentimes the victim must then resolve his credit report, which typically will have been damaged by the time he discovers that the lien was filed. In light of the considerable time and expense imposed by these UCC, redemption, and name “copyrighting” schemes, we agree that requiring the DOC to accommodate plaintiffs right by adopting a “wait and see” approach, rather than by the preemptive measures they employed in this case, would impose more than a “de min-imis ” cost to prison officials. See Jones, 461 F.3d at 360. Therefore, we agree that this final factor cuts in favor of the defendants. Because the plaintiffs have not satisfied their burden of showing that the defendants’ confiscation of their publications and materials was constitutionally unreasonable, we conclude that the District Court properly granted summary judgment in favor of the defendants on this claim. B. Due Process The plaintiffs argue that prison officials violated their Due Process rights by failing to afford them pre-deprivation hearings before confiscating legal and other personal materials. Moreover, they maintain that Due Process entitled them to notice that the materials at issue had been deemed to be contraband. Finally, they challenge the sufficiency of the DOC’s post-deprivation procedure on the grounds that the defendants have not adhered to them own grievance procedure (DC-ADM 804). Like other constitutional rights, the Due Process rights of prisoners may be accommodated to a prison’s legitimate security needs. See Bell v. Wolfish, 441 U.S. 520, 558-60, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). “[A]n unauthorized intentional deprivation of property” by prison officials does not violate the Due Process Clause “if a meaningful postdepri-vation remedy for the loss is available.” Hudson v. Palmer, 468" }, { "docid": "23676597", "title": "", "text": "the claims it is facing. Slade’s factual allegations do not give any notice that he is alleging a procedural due process violation. Nonetheless, even if we were to find that Slade’s complaint adequately presents a claim for a violation of his procedural due process right, we would find that the imposition of the one dollar charge does not violate that right. The Fourteenth Amendment provides that no “State [shall] deprive any person of life, liberty, or property without due process of law.” U.S. Const, amend. XIV. Given this constitutional command, we pose two questions when reviewing a claimed procedural due process violation: “[T]he first asks whether there exists a liberty or property interest which has been interfered with by the State, the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (citations omitted). Of course, due process “is flexible and calls for such procedural protections as the particular situation demands” in order “to minimiz[e] the risk of error.” Greenholtz v. Inmates of the Neb. Penal and Corr. Complex, 442 U.S. 1, 12-13, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Furthermore, “[t]he amount of notice due depends on the context.” Reynolds v. Wagner, 128 F.3d 166, 179 (3d Cir.1997). The Supreme Court requires lower courts to consider three factors when determining if procedures are constitutionally sufficient: (1) the private interest to be affected by the action; (2) the risk of erroneous deprivation of that interest through the procedures that were used and the probable value of added procedures; and (3) the government’s interest, including the fiscal and administrative burdens of added procedures. Mathews, 424 U.S. at 335, 96 S.Ct. 893. The Jail concedes that Slade has a property interest in the one dollar per day that it removed from his account. This property interest, however, is limited because Virginia law provides that a pretrial detainee must be brought to trial within five months of a probable cause hearing, a fact that means the one dollar per day charge will be imposed" }, { "docid": "22944242", "title": "", "text": "state court remedy is “inadequate to the point that it is meaningless or non-existent.” Easter House v. Felder, 910 F.2d 1387, 1406 (7th Cir.1990), cert. denied, 498 U.S. 1067, 111 S.Ct. 783, 112 L.Ed.2d 846 (1991). In sum, we hold that because the state of Illinois provides Stewart with an adequate postdeprivation remedy, Stewart’s due process rights were not violated when Stateville officers confiscated and destroyed his property in violation of IDOC regulations. We now turn our attention to whether the disposal of Stewart’s fan, confiscated in the first search, violated his due process rights. Implicit in Stewart’s claim is an argument that his due process rights were violated even when Stateville officers followed IDOC procedures in disposing of his fan. This argument requires us to review more closely the IDOC procedures governing property confiscation and destruction after shakedowns. As mentioned, IDOC procedure provides that a prisoner should receive a shakedown slip after contraband property is removed from his cell during a shakedown. Ill.Admin.Code tit. 20, § 501.220(b)(6). Once the property is confiscated, a prisoner has 30 days to file a grievance contesting whether the property is truly contraband. Ill.Admin.Code tit. 20, § 501.230(e). If a grievance is filed, the property is stored until the grievance has been resolved. Ill.Admin.Code tit. 20, § 501.230(f). If the prisoner is unhappy with the outcome, he may appeal to the Director of the IDOC. Ill.Admin.Code tit. 20, § 504.850(a). Once it is determined that a prisoner’s property is unauthorized or contraband, the prisoner has 30 days to (a) have the property shipped to, or picked up by a designated individual, (b) request in writing that the property be destroyed, or (c) indicate, in writing,. that he has filed a grievance. Ill.Admin.Code tit. 20, § 501.230(c). If the prisoner does none of these three things, the state may sell, destroy or donate the property. Ill.Admin.Code tit. 20, § 501.230(e). The record indicates that Stateville officers followed proper procedure regarding the confiscation and destruction of Stewart’s fan. He received notice that his fan had been confiscated in the form of a shakedown slip. At an" }, { "docid": "10988143", "title": "", "text": "courts to avoid. See id. at 90, 107 S.Ct. at 2262; see also Sandin, — U.S. at — —, 115 S.Ct. at 2299; Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 136, 97 S.Ct. 2532, 2543, 53 L.Ed.2d 629 (1977); Baraldini v. Thornburgh, 884 F.2d 615, 618 (D.C.Cir.1989). Moreover, imposing such a policy choice by judicial decree would undoubtedly affect the allocation of prison resources, an area in which the courts tread lightly. See Turner, 482 U.S. at 90, 107 S.Ct. at 2262. While federal courts are not, and should not be, reluctant to issue orders that affect the allocation of prison resources in certain cases, a court order is not necessary here to create a new or different procedural mechanism to cure the ill of which plaintiffs complain, particularly when such a mechanism already exists. In sum, the plaintiffs’ dispute with the defendants is one of policy. The Due Process Clause challenge The plaintiffs also aver that the defendants’ policy on INS detainers violates their right to due process of law. The Due Process Clause of the Fifth Amendment to the Constitution protects against government action that deprives a person of liberty or property without due process of law. Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979). Not all actions or decisions by government officials trigger the protections of the Due Process Clause, but only those deprivations in which a person has a legitimate claim of entitlement to the liberty or property at issue. Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 5.Ct. 2701, 2705-06, 33 L.Ed.2d 548 (1972). To establish a due process violation, the plaintiff must first identify a protected liberty interest, which may arise from the Constitution or under state law. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989); Price v. Barry, 53 F.3d 369, 370 (D.C.Cir.1995). Determining whether state law or regulations create an expectancy of release, and therefore, a protected liberty interest, turns simply upon the nature of" }, { "docid": "7622034", "title": "", "text": "451 (1976). Only then does the inquiry shift to whether the procedures employed to protect that interest were constitutionally adequate. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). Here, Burton alleges a constitutional violation on the basis of the procedures used by the prison authorities to keep him in administrative segregation. This type of segregated confinement implicates a liberty interest cognizable under the fourteenth amendment. Hewitt v. Helms, 459 U.S. at 468, 103 S.Ct. at 870. As the Hewitt Court stated, the Pennsylvania regulations which establish administrative segregation also establish “a protected liberty interest [in the inmates] in remaining in the general prison population.” Id. A protected interest being present, the focus of our analysis is whether the process afforded Burton satisfied fourteenth amendment requirements. III. As the Supreme Court has noted, when a cognizable interest is at issue, the determination of what process is due generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. at 903. The requirements of due process are thus necessarily “flexible and variable dependent upon the particular situation being examined.” Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 12, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668 (1979). This is especially true in the prison context where the reach of the due process clause is highly restricted. As the Supreme Court has stated, “one cannot automatically apply procedural rules designed for free citizens in an open society ... to the very different situation presented by a disciplinary proceeding in a state prison.” Wolff v. McDonnell, 418 U.S. 539, 560, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974). And finally, it must be remembered that “[prison" }, { "docid": "22922622", "title": "", "text": "OPINION OF THE COURT MANSMANN, Circuit Judge. Leonard G. Tillman is a former prisoner who was assessed a fee of $10.00 per day for housing costs stemming from two periods of incarceration in a county facility for state parole violations. When Tillman was confined for the second term, officials confiscated half of the funds in his wallet and half of all funds sent on his behalf, in order to pay for the assessments. Tillman ultimately accumulated a debt exceeding $4,000.00, for which his account was turned over to a collection agency after his release from prison. In a pro se complaint filed against the prison and its warden, Tillman alleged that the levying and collection of these sums violated 42 U.S.C. § 1983. The defendants moved for dismissal, or in the alternative, for summary judgment, but the Magistrate Judge recommended denial of the motion on the basis of an analysis of the Eighth and Fourteenth Amendments. After the defendants filed supplemental affidavits, the District Court granted summary judgment and dismissed the complaint. We will affirm. I. Facts The underlying facts are, as Tillman concedes, “essentially undisputed.” After committing unspecified parole violations, Tillman was incarcerated in the Lebanon County Correctional Facility in Pennsylvania between January 30, 1997 and August 21, 1997. Parole was again granted, but similar violations led to his recommitment to the same facility on October 24, 1997. Upon recommitment, prison authorities confiscated half of the money in Tillman’s wallet and subsequently took half of all funds sent on his behalf. These actions were taken pursuant to the facility’s Cost Recovery Program. Under this program, prisoners are assessed a daily charge of $10.00 towards their housing expenses. Any money generated through the program goes into the county’s general fund, which pays the facility’s operating costs. Significantly, the availability of prison services is not contingent upon keeping a clean account. Failure to pay does not result in the denial of room, board, clothing, or other services. Neither can it result in extended prison time or reincarcer-ation. Instead, when a prisoner lacks sufficient funds to pay the assessments, a negative account" }, { "docid": "7456846", "title": "", "text": "EBEL, Circuit Judge. Plaintiff George W. Steffey, an Oklahoma state prisoner appearing pro se, filed a 42 U.S.C. § 1983 civil rights complaint against prison officials alleging that they deprived him of his property in violation of his constitutional due process rights when they confiscated a money order sent to him. The district court granted summary judgment in favor of defendants. We affirm. BACKGROUND The following is undisputed. Mr. Stef-fey was incarcerated at the Oklahoma State Penitentiary (OSP) at all times relevant to this appeal. OSP prison rules prohibit an inmate from receiving money from family members of any other inmate, and permit OSP to confiscate any monies sent to an inmate in violation of these rules. Pam Grubb, the mother of an Oklahoma Department of Corrections (ODOC) inmate, sent Mr. Steffey a fifty-dollar money order at OSP. OSP prison officials immediately notified Mr. Steffey that Ms. Grubb’s name appeared on a prison list of ODOC family members, that the money order therefore violated OSP-120230-02, and, as a result, had been confiscated as contraband. The funds were never deposited into Mr. Steffey’s inmate trust account, nor were they returned to Ms. Grubb. Mr. Steffey used the OSP prison grievance process to challenge the confiscation. After exhausting his administrative remedies, Mr. Steffey filed his § 1983 civil rights complaint alleging that the confiscation of these funds deprived him of his property in violation of his due process rights. The district court dismissed the complaint against the ODOC and the individual defendants in their official capacities because these defendants are immune from suit under the Eleventh Amendment. It also dismissed the claims against numerous defendants based on a lack of personal participation in the alleged violations. Mr. Steffey does not appeal these rulings. The only remaining defendant was David Orman, the OSP official who confiscated the funds. The district court ruled that Mr. Orman was entitled to qualified immunity because his actions did not violate Mr. Steffey’s constitutional rights. The court ruled it was undisputed that the money order violated OSP-120230-02, be cause Mr. Steffey admitted during his administrative grievance proceedings that" }, { "docid": "19931058", "title": "", "text": "Civil Action No. 04-3219, Docket Entry No. 10 (“April Opinion”)). Addressing Petitioner’s allegations, the undersigned noted that it was indeed “appropriate for [Petitioner] to bring these claims in a civil action for declaratory and injunctive relief, as opposed to a habeas action,” April Opinion at 6, n. 5 (citing Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005)), and “construe[d] the Complaint as asserting claims that [Petitioner] was denied due process in the preparation of the BOP psychological report and in his parole hearing and claims under the Privacy Act ... for correction of records of the BOP and the Commission.” Id. at 6. The Court, however, dismissed both the due process and Privacy Act claims. With respect to Petitioner’s due process claim, this Court explained in Bivens-V: There is no constitutional right to parole or to an error-free parole decision-making process. [See] Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).... In Greenholtz, “[the Supreme Court held that a parole statute might be so drafted as to] entitle [a prisoner] to some measure of constitutional protection,” [but] the Court nevertheless rejected the suggestion that parole hearings should be full-scale adversary hearings. [Id.] at 12, 14, 99 S.Ct. 2100. Instead, the Court found sufficient the ... procedures that afford the prisoner an opportunity to be heard and, when parole is denied, that notify the prisoner in what respects he fell short of qualifying for parole. [Id.] at 16, 99 S.Ct. 2100. In addition, ... the Court of Appeals for the Eighth Circuit held that, in the absence of exceptional circumstances, a prisoner at a parole hearing has no constitutional right to call witnesses in his behalf or to confront and cross-examine adverse witnesses. [See Inmates of Nebraska Penal & Correctional Complex v. Greenholtz,] 576 F.2d 1274, 1284 (8th Cir. 1978), rev’d in part on other grounds, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668____Assuming that the Federal Parole Act creates the same “expectation” of parole [as discussed] in Greenholtz, [Petitioner] has failed to state" }, { "docid": "15064580", "title": "", "text": "PER CURIAM. Roosevelt Hayes, an Arkansas state prison inmate, appeals from the district court’s order granting the defendant’s motion for summary judgment. Hayes brought this 42 U.S.C. § 1983 action alleging that he was denied due process when he was assigned to administrative segregation without a preassignment hearing. He also claims that he was unconstitutionally denied a class promotion and meritorious good time. Although the district court properly held that Hayes was not denied due process, we believe the district court erred in granting the defendant’s motion for summary judgment on Hayes’ claim concerning denial of class promotion and good time. Accordingly, we affirm in part and reverse in part. I. DUE PROCESS CLAIM. In December, 1980, Hayes was transferred to the Florida Department of Correction through the Interstate Correction Compact and was placed in the general prison population. Before his transfer to Florida, Hayes had been housed in administrative segregation in Arkansas. Hayes requested to be returned to Arkansas, and this request was granted. Upon his return to Arkansas, Hayes was immediately returned to administrative segregation. Fifteen days later, the Classification Committee held a hearing and determined that Hayes should remain in administrative segregation. Initially, we observe that Hayes had a proteetible liberty interest in being assigned to the general prison population upon his return to Arkansas. Administrative Regulation § 836 of the Arkansas Department of Correction creates an expectation that Arkansas inmates will not be confined to administrative segregation until one of the conditions in the regulations exists. Finney v. Mabry, 528 F.Supp. 567, 570 (E.D.Ark.1981). Having determined that the state created a protectible liberty interest, we must next decide whether the process afforded Hayes satisfied the minimum requirements of due process. “Due process ‘is flexible and calls for such procedural protections as the particular situation demands.’ ” Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). Under the circumstances of this case, we believe Hayes received adequate due" }, { "docid": "23388632", "title": "", "text": "Prisoner Review Board, 791 F.2d 81, 85 (7th Cir.1986), statutes, see Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7-11, 99 S.Ct. 2100, 2103-2106, 60 L.Ed.2d 668; Walker v. Prisoner Review Board, 769 F.2d 396, 400 (7th Cir.1985), certiorari denied, 474 U.S. 1065, 106 S.Ct. 817, 88 L.Ed.2d 791; but see Harris v. Fleming, 889 F.2d 1232 (7th Cir.1988) (prisoners ordinarily have no liberty or property interests in receiving or retaining a job while in prison); Toney-El v. Franzen, 777 F.2d 1224, 1226-1227 (7th Cir.1985) (where state remedies are adequate, inmate has no constitutionally protected liberty interest in early release despite state statute affording good time credits), certiorari denied, 476 U.S. 1178, 106 S.Ct. 2909, 90 L.Ed.2d 994, and administrative regulations, see Hewitt v. Helms, 459 U.S. 460, 471-472, 103 S.Ct. 864, 871-872, 74 L.Ed.2d 675; Fleury v. Clayton, 847 F.2d 1229, 1230, 1232 (7th Cir.1988); cf. Mathews v. Fairman, 779 F.2d 409, 414-415 (7th Cir.1985) (regulation on administrative transfers did not limit official discretion and did not create protected liberty interest). See generally Caldwell v. Miller, 790 F.2d at 602. Once an alleged liberty interest is considered protected, the court then determines what process is due the prisoner by balancing the private interest affected, the risk of error in the procedures used, and the state interest in institutional security. See Wolff v. McDonnell, 418 U.S. at 556, 94 S.Ct. at 2974. The particular due process protections are limited by the need to pursue legitimate correctional goals. Id. Any additional procedural safeguards depend on the balance between the rights accorded both private and governmental interests. See, e.g., Mendoza v. Miller, 779 F.2d 1287, 1294-1296 (7th Cir.1985) (officials need not reveal factual bases for disciplinary decisions involving informants); Garza v. Henderson, 779 F.2d 390, 394-397 (7th Cir.1985) (prison disciplinary hearing held without inmate present does not violate due process unless prejudice demonstrated); Merritt v. De Los Santos, 721 F.2d 598, 600-601 (7th Cir.1983) (due process violated when member of disciplinary tribunal involved in alleged incident); Dawson v. Smith, 719 F.2d 896, 898-899 (7th Cir.1983) (prison disciplinary committee" }, { "docid": "9693344", "title": "", "text": "v. Crozier, 777 F.2d 1376, 1383 (9th Cir.1985). However, Stone's private interest is reduced, because in the domestic setting a spouse's property interest in community property is limited by his duties to the co-owner spouse. See Sample v. Sample, 152 Ariz. 239, 241, 731 P.2d 604, 606 (Ct.App.1986). Countering this interest is the interest of the state in preventing waste or dissipation of marital assets. The deciding factor justifying the lack of traditional procedural protections in this case is that the risk of erroneous deprivation is minimal or nonexistent. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 13, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979) (\"The function of legal process ... is to minimize the risk of erroneous decisions the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error\"). Where the state has authorized a mandatory deprivation conditioned on an easily determined event, the minor risk of clerical error in that determination does not justify pre-deprivation hearings. Dixon v. Love, 431 U.S. 105, 113, 97 S.Ct. 1723, 1727-28, 52 L.Ed.2d 172 (1977) (mandatory suspension of drivers license upon third conviction requires no pre-deprivation hearing). The Arizona statute is an automatic mandatory deprivation of property involved in a divorce proceeding. Stone claims that his property interests are inadequately protected without an immediate hearing to determine the \"scope and necessity of the injunction.\" Id. 442 U.S. at 23-24, 99 S.Ct. at 2111-12. But the statute does not restrict the property right only when an injunction is \"necessary\"; it restricts the property right in every divorce case. Ariz. Rev.Stat.Ann. § 25-315(A). Stone presents no evidence or allegation that there is any risk that the wrong parties will be named, or that an injunction could issue where no petition for divorce had been filed. Be cause the risk of erroneous deprivation is minimal or nonexistent, the existing procedure satisfies due process. The due process claim was properly denied. III. AUGMENTATION OF THE CONTEMPT SENTENCES In its cross-appeal the State challenges the district court’s finding that Stone" }, { "docid": "22922662", "title": "", "text": "silent regarding the permissible sources of funds that go into the treasury. We do not read this silence to support the plaintiff's argument. Rather, section 410 simply requires that creditors be paid in the first instance by the county. In no way does it prohibit the recovery of costs from those who receive the benefits of those expenditures. To conclude otherwise would be contrary to Reynolds, where we upheld similar prisoner assessments. In sum, because sections 408 and 409 expressly grant broad and exclusive authority to the prison board, we reject the plaintiff's suggestion that the board lacked the authority to promulgate the Cost Recovery Program. RENDELL, Circuit Judge, concurring in part and dissenting in part: In his pro se complaint, Tillman, a state prisoner, alleges that the Lebanon County prison took half of the money in his wallet, as well as half of the money orders sent to him, to pay the balance of a daily $10 charge incurred during an earlier prison sentence. The prison took this money pursuant to a policy adopted by the Lebanon County Prison Board. Tillman states, “I sign [sic] no agreement or contracts to have them take my money.” His counseled brief on appeal similarly attacks the prison’s basis for taking his money, stating that “no court, nor any statute, authorizes the imposition of the arbitrary costs forced on appellant against his will.” Brief for Appellant at 6. According to the affidavit of the former Chairman of the Lebanon County Prison Board, the Prison Board adopted the Cost Recovery Program “as a rehabilitative measure, designed to teach sentenced inmates financial responsibility, by requiring them to contribute to the expenses necessary to house, feed, clothe and protect them while incarcerated.” App. 92. The majority concludes that the prison’s internal grievance procedure provides prisoners with the post-deprivation opportunity for a hearing that due process requires. I agree with the majority’s holding, as far as it goes. However, I do not think we have addressed the more fundamental substantive due process question raised by Tillman’s allegations, namely, what enables the Lebanon County Prison Board to impose" }, { "docid": "7819313", "title": "", "text": "plaintiff’s action to be, in essence, one for defamation, with no incidental denial of any other right held under law. This conclusion was based, in part, on language in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979), cited by the District Court, to the effect that there is no inherent or constitutional right to parole release. This statement is no doubt true in a general sense, but as we will explain, it does not embody the full teaching of Greenholtz, nor does it resolve all the issues presented in this complaint. Greenholtz was a class action under 42 U.S.C. § 1983 brought by the inmates of the Nebraska Penal and Correctional Complex. The inmates claimed, inter alia, that they had been unconstitutionally denied parole without procedural due process. 442 U.S. at 3-4, 99 S.Ct. at 2102. After an examination of the “unique structure and language” of the Nebraska parole statutes, the Supreme Court concluded that the statutory requirements did create a liberty interest, that is, an expectancy of release, that was entitled to the protection of due process. Id. at 12, 99 S.Ct. at 2106. Thus, the more complete lesson of Greenholtz is that, though there is no inherent right to parole, a limited right to parole may be provided by applicable statutes. The question in each case must turn on a careful examination of the particular statutes and regulations governing parole in a given jurisdiction. Accordingly, resolution of the question whether a federal prisoner has a limited right to parole protected by the Due Process Clause necessarily involves an analysis of the relevant federal parole statutes. We begin by noting that not every expectation, whether born of statute or otherwise, gives rise to a protectible interest. For example, in Meachum v. Fano, 427 U.S. 215, 228, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451 (1976), a prisoner’s expectation that he would remain at a particular prison was found to be “too ephemeral and insubstantial to trigger procedural due process protections” where officials had the discretion to transfer" }, { "docid": "22425232", "title": "", "text": "not satisfied their burden of showing that the defendants’ confiscation of their publications and materials was constitutionally unreasonable, we conclude that the District Court properly granted summary judgment in favor of the defendants on this claim. B. Due Process The plaintiffs argue that prison officials violated their Due Process rights by failing to afford them pre-deprivation hearings before confiscating legal and other personal materials. Moreover, they maintain that Due Process entitled them to notice that the materials at issue had been deemed to be contraband. Finally, they challenge the sufficiency of the DOC’s post-deprivation procedure on the grounds that the defendants have not adhered to them own grievance procedure (DC-ADM 804). Like other constitutional rights, the Due Process rights of prisoners may be accommodated to a prison’s legitimate security needs. See Bell v. Wolfish, 441 U.S. 520, 558-60, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). “[A]n unauthorized intentional deprivation of property” by prison officials does not violate the Due Process Clause “if a meaningful postdepri-vation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)(citing Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)). Pre-deprivation notice is not constitutionally required. See id. Because prisons are constitutionally required to afford inmates only a post-deprivation remedy, we agree that the defendants’ failure to give the inmates prior notice of their intended seizure of their materials notice did not violate the plaintiffs’ Due Process rights. Id. We also agree that the DOC furnished the plaintiffs with a meaningful post-deprivation remedy. After prison officers raided plaintiffs’ cells and confiscated their materials, Deputy Superintendent for Internal Security Michael Lorenzo distributed a letter to the inmates setting forth the DOC’s newly developed policy on “publications, UCC filings, the redemption process, UCC forms and tax forms used to file fraudulent liens.” The letter further explained why the inmates’ materials were confiscated and assured that non-contraband materials would be returned. Additionally, it informed them that the DOC’s usual grievance procedure was available to them, and it set forth a special process for objecting to" }, { "docid": "23676607", "title": "", "text": "costs of confinement. See, e.g„ Fla. Stat. § 960.293(2) (2003); Iowa Code § 356.7(1) (2003). . See, e.g., Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 417-24 (3d Cir.2000) (upholding $10 per day housing fee); Christiansen v. Clarke, 147 F.3d 655, 657 (8th Cir.1998) (upholding withdrawal of $2,790 from inmate account to pay for cost of room and board during work release program). . Our standard is culled from the one announced by the Court in Bell. The Court instructed lower courts to determine if a pretrial detainee was punished by looking to whether there was an express intent to punish and \"whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].'' Bell, 441 U.S. at 538, 99 S.Ct. 1861 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)). . We note that in Washlefske v. Winston, 234 F.3d 179 (4th Cir.2000), we held that, for purposes of the Takings Clause, convicted prisoners in Virginia did not have a property right in the interest earned on their prison accounts. Id. at 186. Washlefske rested upon the fact that prisoners had limited property rights at common law and the proposition that \"if a statute creates a property right not previously recognized ... the property interest so created is defined by the statute.\" Id. at 184. Accordingly, we do not believe its rationale compels a finding in this case that Slade, a pretrial detainee whose inmate account contained funds that were not created by a limited statute, lacks a property interest in the principal in his account for purposes of the Due Process Clause. . We note that Slade has not alleged the absence of a post-deprivation remedy. Clearly, Slade had the Jail’s grievance procedures available to him. In addition, the Jail permits persons adjudicated not guilty on all charges to write, within 60 days, for a refund of the fee." }, { "docid": "2055786", "title": "", "text": "to Free Services Even where a private entity’s action constitutes state action, it will not deprive anyone of due process unless that action affects some liberty interest or property interest protected by due process. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). The Supreme Court has in a number of cases discussed what equals a protectable interest. In Roth, the Court held the protected property interest must be found in some law outside of the constitutional due process guarantees which creates more than a unilateral expectation of a benefit. The external law must create a legitimate claim of entitlement. See 408 U.S. at 577, 92 S.Ct. at 2709. The plaintiff in Roth did not have such an entitlement in his claim for a hearing before his teaching contract was not reviewed. He was hired for one year with no provision in the contract or the enabling legislation for renewal. The Court also failed to find a property right to continued employment as a city policeman where the ordinance describing the job had been interpreted to be employment-at-will. See Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). In Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), the Court held that prisoners under the state law in question did not have a protected interest in not being transferred from one prison to another, less favorable prison. The state law had allowed transfer in a wide variety of circumstances with discretion vested in the prison officials. The Court again considered the due process rights of prisoners in Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). The Court rejected the notion that the mere possibility of parole release created by state statute was enough to trigger due process. See 442 U.S. at 8-11, 99 S.Ct. at 2104-2105. However, under the statute in question, the Court did find that a legitimate claim of entitlement to some due process had been created." }, { "docid": "23070421", "title": "", "text": "a fixed content unrelated to time, place and circumstances. Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). Instead, it is a flexible concept that requires such procedural protections as the particular situation demands. Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). As the Supreme Court has emphasized: The function of the legal process, as that concept is embodied in the Constitution, and in the realm of factfinding, is to minimize the risk of erroneous decisions. Because of the broad spectrum of concerns to which the term must apply, flexibility is necessary to gear the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error. Greenholtz, 442 U.S. at 13, 99 S.Ct. at 2107 (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976)). To determine what process is appropriate, the countervailing interests of appellants and HUD must be balanced. [I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). The hardship upon tenants here consists in their being deprived, in their necessitous circumstances, of housing assistance benefits for periods as long as seven months. In this regard, the Supreme Court has recognized that “the possible length of wrongful deprivation of ... benefits is an important factor in assessing the impact of official action on the" }, { "docid": "22808130", "title": "", "text": "on conduct which occurred prior to the program’s beginning do not violate the Ex Post Facto Clause, summary judgment for the defendants on the inmates’ ex post facto claim was appropriate. C. The Due Process Claim The inmates next claim that the SOTP violates their due process rights. They contend that their classification as sex offenders and their consequential assignment to the SOTP, mandating that they successfully complete the treatment program as a precondition to parole eligibility, implicates a liberty interest subject to the protections of due process, which were not afforded them by the State.. Our examination of this claim thus requires us to answer two questions: (1) Is there such a liberty interest? and (2) If so, what process is due? “The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2704, 33 L.Ed.2d 548 (1972). State statutes and prison regulations may grant prisoners liberty interests that invoke due process protections. Meachum v. Fano, 427 U.S. 215, 223-27, 96 S.Ct. 2532, 2537-39, 49 L.Ed.2d 451 (1976). The Supreme Court has held that: [TJhese interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Sandin v. Conner, 515 U.S. 472, 483, 115 S.Ct. 2293, 2299, 132 L.Ed.2d 418 (1995) (citations omitted). The district court noted and the parties acknowledge that a prisoner does not have a constitutional right to be housed at a particular institution, Meachum, 427 U.S. at 224, 96 S.Ct. at 2537 to receive a particular security classification, Moody v. Daggett, 429 U.S. 78, 87 n. 9, 97 S.Ct. 274, 279 n. 9, 50 L.Ed.2d 236 (1976), or to be released on parole, Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60" } ]

[ { "docid": "22744174", "title": "", "text": "in no degree to the collision? How can it be proved that if a foghorn had been blown those on board the steamer would not have heard it in season to have enabled them to check their speed or change their course, and thus avoid any collision ? Though there were two lookouts on the steamer, each in his proper place, the bark’s bell was not heard until the vessels were close upon each other. Who can say the proximity of the vessels would not have been discovered sooner if the bark had obeyed the navy regulations? If it be said this is speculation, it may be admitted, but it is speculation rendered necessary by a certain fault of the bark. It is equally speculative to conclude that the collision would have taken place if a foghorn had been used instead of a bell, and infer therefrom that the fault of the bark had no relation to the disaster. The truth is the case is one in which, while the presumption is that the failure to blow a foghorn was a contributory cause of the collision, and while the burden of showing that it was in no degree occasioned by that failure rests upon the bark, it is impossi ble to rebut the presumption. It is a well-known fact that in some states of the atmosphere a foghorn can be heard at much greater distances than in others. How far it could have been heard when this collision occurred can never be known. Nor can it be known what precautions the steamer would have adopted if the true and proper signal had been given her. Hence, it appears to us the bark has not proved that her failure to obey the shipping regulations was not a concurrent cause of the injury she received; and, consequently, as both vessels were in fault, the damages, according to the admiralty rule, should be divided. We have not overlooked the fact that in a libel by the owners of the cargo of the bark against the steamer for damages resulting from the same collision," } ]

[ { "docid": "14446227", "title": "", "text": "the ordinary course of navigation. The evidence discloses that those in charge of the Audrey were aware of the location of both Pilot Stations and, indeed, observed the Moisie Bay signalling by flashing light in the direction of the Pilot Boats at approximately 2010. The Moisie Bay was known to be inbound and the Audrey personnel estimated the course of the Moisie Bay at 310°-315°, with added observations of deceleration in speed. It is plain that such changes of course, if any, and the admitted decrease in speed on the part of the Moisie Bay were not only anticipated but also known by, and disclosed to, the Audrey. Certainly with knowledge of the location of the Pilot Stations, and being cognizant of the general need for inbound vessels to pick up a pilot, the Audrey had no right to assume that, in a crossing situation, the speed of the Moisie Bay would not be decreased. For the foregoing reasons it is unnecessary to invoke the rule in The Pennsylvania, 19 Wall. 125,136, 22 L.Ed. 148, as no statutory fault has been found with respect to maintaining course and speed under the facts and circumstances of this case. The contention is advanced that the Moisie Bay did not take proper avoiding action in order to escape the collision. Bearing in mind that the Moisie Bay was the privileged vessel approaching a Pilot Station — a fact that was known to both vessels — it was not appropriate for those aboard the Moisie Bay to speculate that the Audrey, as the burdened vessel in a crossing situation, would fail to obey the rules. For the Moisie Bay to so assume and thereby engage in avoiding action would, as has been so frequently said, reduce navigation to a game of bluff. Hellenic Lines v. The Exmouth, 2 Cir., 253 F.2d 473, 476, certiorari denied 356 U.S. 967, 78 S.Ct. 1006, 2 L.Ed.2d 1074; Wilson v. Pacific Mail S.S. Co., 276 U.S. 454, 48 S.Ct. 369, 72 L.Ed. 651; Pacific-Atlantic S.S. Co. v. United States, 4 Cir., 175 F.2d 632. A mere error of" }, { "docid": "17611307", "title": "", "text": "northwesterly. The exchange of Morse signal lights between Moisie Bay and the pilot boats was observed by Audrey when she started upon her course, crossing that of Moisie Bay, eleven minutes before the collision. These signals were not read by Audrey but they were understood to be “maybe for a pilot.” Audrey knew, by taking instrument bearings, of the decrease in speed or reduction of headway of the Moisie Bay. These observations were made when the vessels were about one and one-half miles apart. Moisie Bay’s admitted decrease in speed was not only to be anticipated but was actually known to Audrey and the latter was aware of the general need of an inbound vessel for a pilot in the ordinary course of navigation. Audrey argues that her master could not have known, from the course and reduction in speed, the intention of Moisie Bay to pick up a pilot in the approaches to the Maryland Pilot Boat but it is difficult to reconcile her argument with the foregoing findings of the court. The Distinct Court observed that, to reconstruct the course and speed of the Audrey in light of the fabricated log and inconsistencies revealed by the testimony was an impossible task; and, to accept Audrey’s version would be tantamount to finding that she went fully astern ten minutes before the collision, which was exactly what the fabricated log disclosed. The court adopted the inference that if the original log had been produced it would have been unfavorable to the Audrey and, of necessity, her witnesses would then have testified to a contrary state of facts. It was testified by Moisie Bay that she was gradually reducing speed so as to permit the pilot to board with safety and that she had changed her compass direction to compensate for a detected “set to the westward,” thus maintaining her basic course to the agreed pilot rendezvous point. Audrey contends that it is clearly shown, by Moisie Bay’s own evidence, that the latter, the privileged vessel, violated the requirement that she maintain her course and speed. This contention was carefully considered" }, { "docid": "14446216", "title": "", "text": "reduced to full-ahead harbor maneuvering speed of 11 knots, 65 RPM. At 2010, as noted, she changed her heading 8° to the right. Three minutes thereafter she reduced to half-speed, 8 knots, 40 to 45 RPM, and at 2014 she reduced further to slow-ahead, 6 knots, 30 to 35 RPM. At 2016 she reduced to dead-slow-ahead, 2%-3 knots, 20 RPM. About two minutes prior to the impact, she went full astern and gave three short blasts of her whistle. The clock in the engine room revealed, after the collision, a variation of one minute with bridge time; the latter being faster than the engine room. The Moisie Bay first sighted the navigation lights of a vessel, which later turned out to be the Audrey, at about 2000, at which time the Audrey was slightly in excess of 7 miles away to port, coming out of the channel from Norfolk and heading to sea. At 2010 the navigation lights of the approaching vessel were observed as she was drawing away from the pilot launch, at which time she started a course crossing that of the Moisie Bay. When the Audrey was observed at 2016, she appeared to be about one mile off the port bow of the Moisie Bay with no apparent indication of change of course or speed. At or about that time, the master of the Moisie Bay was advised that the Audrey was 0.6 miles distant by radar. At 2018 the Audrey sounded three short blasts of her whistle indicating that her engine was full-speed astern when she was about 45° on the port bow of Moisie Bay. In another 45 seconds or so, the Audrey sounded a second signal of three short blasts, but in the interim was only one-quarter mile off the port bow of the Moisie Bay. At that point the master of the Moisie Bay put the engines full-speed astern and sounded three short blasts at 2019. The Audrey then sounded two short blasts; the Moisie Bay responded in like manner ; and, a few seconds prior to the collision, the Audrey again sounded" }, { "docid": "17611306", "title": "", "text": "of any infraction of the Rules. But it is conceded that the Audrey was the “burdened” vessel in this crossing situation, with the duty to keep out of the way and to avoid crossing ahead of the Moisie Bay. The “privileged” vessel was the Moisie Bay whose duty it was to maintain her course and speed. It is implicit in the trial court’s findings that the Audrey, disregarding her duty and obligation, set her course after leaving the vicinity of the Virginia Pilot Station and created a crossing situation, with the possibility of collision, which course was maintained without deviation until collision was imminent and at a time when it was too late to act effectively to prevent or avoid disaster. On the credible evidence the court found certain facts which may be briefly reviewed. The Audrey was aware of the presence and location of the Virginia Pilot Boat and, to the northwest thereof, the presence and location of the Maryland Pilot Boat. The outgoing Audrey knew that the Moisie Bay was inbound and headed northwesterly. The exchange of Morse signal lights between Moisie Bay and the pilot boats was observed by Audrey when she started upon her course, crossing that of Moisie Bay, eleven minutes before the collision. These signals were not read by Audrey but they were understood to be “maybe for a pilot.” Audrey knew, by taking instrument bearings, of the decrease in speed or reduction of headway of the Moisie Bay. These observations were made when the vessels were about one and one-half miles apart. Moisie Bay’s admitted decrease in speed was not only to be anticipated but was actually known to Audrey and the latter was aware of the general need of an inbound vessel for a pilot in the ordinary course of navigation. Audrey argues that her master could not have known, from the course and reduction in speed, the intention of Moisie Bay to pick up a pilot in the approaches to the Maryland Pilot Boat but it is difficult to reconcile her argument with the foregoing findings of the court. The Distinct" }, { "docid": "14446229", "title": "", "text": "judgment forced upon the privileged vessel by the fault of the burdened vessel is not sufficient where the circumstances are such as existed here, and any doubt as to the propriety of the navigation of the Moisie Bay should be resolved in her favor. Companía DeNavegacion Cebaco, S. A. v. The Steel Flyer, 4 Cir., 200 F.2d 643; Nicolas Eustathiou & Co. v. United States, D.C., 178 F.Supp. 33, 40; Griffin on Collision, § 51(4) p. 153. The avoiding action on the part of Moisie Bay, i. e., putting her engine full speed astern and sounding a three short blast signal after receipt of the second three short blast signal of the Audrey, was proper under the facts and circumstances confronting the Moisie Bay in this crossing situation. The testimony discloses that the lookout on the Moisie Bay went below at about 2010 to prepare for the boarding of the pilot. If the navigators of both vessels had not had the other vessel in sight and under observation at all times pertinent, or if the weather conditions and visibility had not been excellent, such action on the part of the lookout could seriously prejudice the rights of the Moisie Bay. But it is well settled that, under such circumstances as existed on the night in question, the absence of a specific lookout is immaterial. In The Georg Dumois, 4 Cir., 153 F. 833, 835, it is said: “If the schooner was seen at a distance sufficiently great to have enabled the steamer to pass her in safety, then the collision must have been caused by some fault other than the absence of a lookout.” Assuming arguendo a statutory fault as to the absence of a lookout from 2010 to the moment of collision, it could not have been reasonably possible that such fault had anything to do with the collision. Nor is it of significance that, at 2010, the Moisie Bay did not give a one-blast signal when she adjusted her heading 8° right to 323° to compensate for the set that she was experiencing. At that time the Moisie" }, { "docid": "2159386", "title": "", "text": "so long as the changes are predictable. We have specifically held that an inbound vessel approaching the vicinity of this same Maryland Pilot boat in the mouth of Chesapeake Bay, slowing for the purpose of taking on a pilot, was holding her course and speed within the meaning of the Rule prescribing the duties of the holding-on vessel. The same principle applies to a vessel leaving the vicinity of the pilot boats after it has slowed to discharge its pilot. Accelerating speeds on seaward headings are routine and to be expected of large vessels leaving the vicinity of the pilot boats. The United States would distinguish the Moisie Bay on the ground that the burdened vessel there actually saw the Moisie Bay exchanging signals with the pilot boat and observed the Moisie Bay’s deceleration, circumstances from which the District Court there had concluded that the Master of the burdened vessel should have known and understood the Moisie Bay’s intentions and anticipated her subsequent maneuvers. Here, it says, the Darby had no means of knowing whether the Soya Atlantic had dropped a pilot in the vicinity of the pilot boats, and the Darby had no other means of recognizing that a crossing situation was presented when, because of the Soya Atlantic’s acceleration, the relative bearings were changing. The Darby knew, however, where the pilot boats were and it should have expected large ships seaward bound from their vicinity to be accelerating their speed. She knew that she was approaching a crossing of the track followed by many outbound vessels, and, observing the Soya Atlantic on her starboard bow with its red light showing, the Darby had every reason to believe the Soya Atlantic was following that track and that her speed was, or might be, accelerating. The Soya Atlantic’s increasing speed did not lack predictability merely because the incautious Darby rushed into danger without recognition of what should have been apparent to her. We think the District Judge properly concluded that, under the facts as found by him, the Soya Atlantic discharged its duty under the Rule to hold its course" }, { "docid": "14446215", "title": "", "text": "heading of 315° by gyro to make good a course of 314° true in the direction of buoy “2A”. From this point the Moisie Bay approached the Pilot Station. That there were reductions in speed is conceded as it was necessary to do so in order that the pilot could board the vessel at the rendezvous point. The Audrey knew that the Moisie Bay was inbound headed northwesterly. She noted the exchange of Morse signal lights between the Moi-sie Bay and the pilot vessels. By taking bearings, the chief officer of the Audrey observed that the Moisie Bay was reducing her headway. At 2010 there were indications from the plotted observations that the Moisie Bay was experiencing a set to the westward. To compensate for this set, the compass heading was placed on 323° gyro, thus enabling her to make a basic course of 314° to the rendezvous point near buoy “2A”. The alert to “stand by” was received by the engine room of the Moisie Bay at 2001. Four minutes later her speed was reduced to full-ahead harbor maneuvering speed of 11 knots, 65 RPM. At 2010, as noted, she changed her heading 8° to the right. Three minutes thereafter she reduced to half-speed, 8 knots, 40 to 45 RPM, and at 2014 she reduced further to slow-ahead, 6 knots, 30 to 35 RPM. At 2016 she reduced to dead-slow-ahead, 2%-3 knots, 20 RPM. About two minutes prior to the impact, she went full astern and gave three short blasts of her whistle. The clock in the engine room revealed, after the collision, a variation of one minute with bridge time; the latter being faster than the engine room. The Moisie Bay first sighted the navigation lights of a vessel, which later turned out to be the Audrey, at about 2000, at which time the Audrey was slightly in excess of 7 miles away to port, coming out of the channel from Norfolk and heading to sea. At 2010 the navigation lights of the approaching vessel were observed as she was drawing away from the pilot launch, at which" }, { "docid": "14446228", "title": "", "text": "as no statutory fault has been found with respect to maintaining course and speed under the facts and circumstances of this case. The contention is advanced that the Moisie Bay did not take proper avoiding action in order to escape the collision. Bearing in mind that the Moisie Bay was the privileged vessel approaching a Pilot Station — a fact that was known to both vessels — it was not appropriate for those aboard the Moisie Bay to speculate that the Audrey, as the burdened vessel in a crossing situation, would fail to obey the rules. For the Moisie Bay to so assume and thereby engage in avoiding action would, as has been so frequently said, reduce navigation to a game of bluff. Hellenic Lines v. The Exmouth, 2 Cir., 253 F.2d 473, 476, certiorari denied 356 U.S. 967, 78 S.Ct. 1006, 2 L.Ed.2d 1074; Wilson v. Pacific Mail S.S. Co., 276 U.S. 454, 48 S.Ct. 369, 72 L.Ed. 651; Pacific-Atlantic S.S. Co. v. United States, 4 Cir., 175 F.2d 632. A mere error of judgment forced upon the privileged vessel by the fault of the burdened vessel is not sufficient where the circumstances are such as existed here, and any doubt as to the propriety of the navigation of the Moisie Bay should be resolved in her favor. Companía DeNavegacion Cebaco, S. A. v. The Steel Flyer, 4 Cir., 200 F.2d 643; Nicolas Eustathiou & Co. v. United States, D.C., 178 F.Supp. 33, 40; Griffin on Collision, § 51(4) p. 153. The avoiding action on the part of Moisie Bay, i. e., putting her engine full speed astern and sounding a three short blast signal after receipt of the second three short blast signal of the Audrey, was proper under the facts and circumstances confronting the Moisie Bay in this crossing situation. The testimony discloses that the lookout on the Moisie Bay went below at about 2010 to prepare for the boarding of the pilot. If the navigators of both vessels had not had the other vessel in sight and under observation at all times pertinent, or if the" }, { "docid": "14446231", "title": "", "text": "Bay was just outside the line marking waters governed by Inland Rules, but the Audrey was plainly within the area governed by Inland Rules. A one-blast signal under International Rule 28(a), 33 U.S.C.A. § 147, means “I am altering my course to starboard.” Under the Pilot Rule for Inland Waters, 33 C.F.R. § 80.03, it signifies the same except that when two steam vessels are approaching each other at right-angles or obliquely, it is evidence of an intention of the vessel to the starboard to hold course and speed. It is fair to assume that, at the time stated, a whistle signal from the Moisie Bay would be reasonably interpreted under the Inland Rules. The Knoxville City (Isthmian S.S. Co. v. American-Hawaiian S.S. Co.), 9 Cir., 112 F.2d 223. If the signal had been given under Inland Rules, the Audrey would have been advised of nothing other than the fact that the Moisie Bay intended to hold course and speed in the maneuver it was undertaking in approaching the Pilot Station, all of which has been heretofore discussed. Upon consideration of the evidence as a whole it is manifest that the collision was undoubtedly due to the grossly improper navigation of the Audrey whose actions could not be anticipated. Were it necessary to so find, it would seem appropriate to invoke the major-minor fault rule. The City of New York, 147 U.S. 72, 13 S.Ct. 211, 37 L.Ed. 84; Webb v. Davis, 4 Cir., 236 F.2d 90. Any reasonable doubt as to the propriety of navigation on the part of the Moisie Bay should be resolved in her favor. The collision point was established by the Moisie Bay, through the use of her radar for direction and distance, as a position with buoy “2A” bearing 347° true, distant 0.6 of a mile. While undoubtedly this point is subject to minor variations, it is the most credible evidence available and is reasonably acceptable. The Audrey did not take any fix to ascertain her position in the collision area. As noted, the testimony presented by the Audrey is entitled to only slight" }, { "docid": "14446217", "title": "", "text": "time she started a course crossing that of the Moisie Bay. When the Audrey was observed at 2016, she appeared to be about one mile off the port bow of the Moisie Bay with no apparent indication of change of course or speed. At or about that time, the master of the Moisie Bay was advised that the Audrey was 0.6 miles distant by radar. At 2018 the Audrey sounded three short blasts of her whistle indicating that her engine was full-speed astern when she was about 45° on the port bow of Moisie Bay. In another 45 seconds or so, the Audrey sounded a second signal of three short blasts, but in the interim was only one-quarter mile off the port bow of the Moisie Bay. At that point the master of the Moisie Bay put the engines full-speed astern and sounded three short blasts at 2019. The Audrey then sounded two short blasts; the Moisie Bay responded in like manner ; and, a few seconds prior to the collision, the Audrey again sounded three short blasts. During the final minute prior to the collision the Moisie Bay lost steerageway and would not respond to her rudder. When the collision occurred at 2021, Moisie Bay bridge time, the vessel had little or no headway. The Audrey struck the port bow of the Moisie Bay at an approximate angle of 90°; the bow hitting between the stem and anchor windlass, passing through the starboard side, and causing the bow of the Moisie Bay to swing to starboard. The Audrey drifted slowly down the port side of the Moi-sie Bay. Three minutes after the collision, the Moisie Bay went half-ahead under hard left rudder in order to avoid shoal water nearby. The Maryland pilot boarded the Moisie Bay at 2035, and the vessel thereafter proceeded to Baltimore. The credible evidence supports the contentions of the privileged vessel. The testimony likewise conclusively establishes that the engine log book of the Audrey was fabricated. Manifestly, the page of the original entries for March 24, 1957, in the Audrey’s rough engine log book had" }, { "docid": "17611305", "title": "", "text": "no such conviction here and being of the opinion that the trial judge correctly interpreted and applied the law, we affirm. Unfortunately, the Audrey labors under the terrific burden of a finding, clearly supported by substantial evidence, that her engine log book, which should contain an accurate statement of certain events occurring prior to and leading up to the collision, was intentionally and fraudulently fabricated. We strongly favor the invocation of the principle “that intentional falsification of material records presumptively destroys the weight of the offender’s evidence as to the entire case.” The trial judge made the additional statement, of which we approve, as follows: “While there are many inconsistencies and discrepancies in the Audrey’s testimony, these only-point significantly to a continuation of efforts to conceal the true facts. To detail the theory of the Audrey’s case would unduly emphasize the fraud, and perhaps lend dignity to the fraudulent scheme.” The Audrey complains that the District Court apparently predicated its decision upon the log book fraud and wholly failed to specify wherein she was guilty of any infraction of the Rules. But it is conceded that the Audrey was the “burdened” vessel in this crossing situation, with the duty to keep out of the way and to avoid crossing ahead of the Moisie Bay. The “privileged” vessel was the Moisie Bay whose duty it was to maintain her course and speed. It is implicit in the trial court’s findings that the Audrey, disregarding her duty and obligation, set her course after leaving the vicinity of the Virginia Pilot Station and created a crossing situation, with the possibility of collision, which course was maintained without deviation until collision was imminent and at a time when it was too late to act effectively to prevent or avoid disaster. On the credible evidence the court found certain facts which may be briefly reviewed. The Audrey was aware of the presence and location of the Virginia Pilot Boat and, to the northwest thereof, the presence and location of the Maryland Pilot Boat. The outgoing Audrey knew that the Moisie Bay was inbound and headed" }, { "docid": "2159385", "title": "", "text": "provides that if one crossing vessel cannot comply with the other’s Signals, the danger signal will be sounded and both vessels stopped and backed if necessary until agreement upon a safe passage is reached. Under these rules, the Soya Atlantic, observing the green navigation light of the Darby approaching off the Soya Atlantic’s port bow, was required to keep her course and speed, while the Darby, observing the Soya Atlantic’s red navigation light *off her starboard bow, was required to keep out of the way of the Soya Atlantic. Thus the Darby’s plain duty was to turn to starboard so as to pass astern of the Soya Atlantic, or to slacken her speed or stop in time to stay well clear of the Soya Atlantic’s course, and those on the bridge of the Soya Atlantic initially had every reason to assume that the Darby would do her duty. It is well settled that the holding-on vessel maintains her course and speed as required by the Rule notwithstanding changes in both her course and her speed so long as the changes are predictable. We have specifically held that an inbound vessel approaching the vicinity of this same Maryland Pilot boat in the mouth of Chesapeake Bay, slowing for the purpose of taking on a pilot, was holding her course and speed within the meaning of the Rule prescribing the duties of the holding-on vessel. The same principle applies to a vessel leaving the vicinity of the pilot boats after it has slowed to discharge its pilot. Accelerating speeds on seaward headings are routine and to be expected of large vessels leaving the vicinity of the pilot boats. The United States would distinguish the Moisie Bay on the ground that the burdened vessel there actually saw the Moisie Bay exchanging signals with the pilot boat and observed the Moisie Bay’s deceleration, circumstances from which the District Court there had concluded that the Master of the burdened vessel should have known and understood the Moisie Bay’s intentions and anticipated her subsequent maneuvers. Here, it says, the Darby had no means of knowing whether" }, { "docid": "14446226", "title": "", "text": "it seems to me that such a construction would in many cases render nugatory the express provisions of Arts. 27 and 29. “ * * * In my judgment ‘course and speed’ in Art. 21 mean course and speed in following the nautical manoeuvre in which, to the knowledge of the other vessel, the vessel is at the time engaged * * * The question must be in each case, ‘Is the manoeuvre in which the vessel is engaged an ordinary and proper manoeuvre in the course of navigation which will require an alteration of course and speed; ought the other vessel be aware of the manoeuvre which is being attempted to be carried out.’ ” From these expressed views it is apparent that the rule requiring the privileged vessel to keep her course and speed does not impose an obligation which is absolute and binding in all cases and under all circumstances. The presence of pilot boats and the necessity of dropping and picking up pilots are matters which are of every-day occurrence in the ordinary course of navigation. The evidence discloses that those in charge of the Audrey were aware of the location of both Pilot Stations and, indeed, observed the Moisie Bay signalling by flashing light in the direction of the Pilot Boats at approximately 2010. The Moisie Bay was known to be inbound and the Audrey personnel estimated the course of the Moisie Bay at 310°-315°, with added observations of deceleration in speed. It is plain that such changes of course, if any, and the admitted decrease in speed on the part of the Moisie Bay were not only anticipated but also known by, and disclosed to, the Audrey. Certainly with knowledge of the location of the Pilot Stations, and being cognizant of the general need for inbound vessels to pick up a pilot, the Audrey had no right to assume that, in a crossing situation, the speed of the Moisie Bay would not be decreased. For the foregoing reasons it is unnecessary to invoke the rule in The Pennsylvania, 19 Wall. 125,136, 22 L.Ed. 148," }, { "docid": "14446233", "title": "", "text": "credibility because of the glaring inconsistencies and the obvious fabrication of the log. To reconstruct the course and speed of the Audrey in light of the fabricated log and inconsistencies revealed by the testimony would be an impossible task. The most that can be accomplished is to summarize the Audrey’s version. Adjusting times to Moise Bay bridge time, as there was five minutes difference in the bridge times of each vessel, the following appears to be the sequence of events according to the Audrey testimony. At 2005, the vessel dropped her pilot just before Cape Henry Light came abeam, after which she put her engines full ahead and set her course on 85°. At that time the Moisie Bay was observed on the Audrey’s starboard bow, showing her red side light and her white masthead and range lights. At 2007 the Cape Henry Light was abeam distant one mile, at which time the Moisie Bay was broad on the Audrey’s starboard bow approximately 2.5 miles. The Audrey contends that her chief officer took frequent bearings of the Moisie Bay and noted that they were steadily decreasing, indicating that the Moisie Bay would cross ahead of the Audrey and, at 2009, he noted that the bearings had become constant, and thereafter the Audrey reduced her speed from full ahead to slow. At 2010 the Audrey put her engines half astern and sounded a three-blast signal. At 2011 the bearing was still constant and the Audrey put her engines full astern and again sounded a three-blast signal. During the succeeding eight minutes the Audrey continued backing and made no change of course due to the possibility of grounding on shoal water to the starboard. All of this time the Moisie Bay continued on, although at diminishing speed. By 2019 the Audrey had lost her headway, her bow began to fall off to port, and she sounded a two-blast signal which was answered by a one-blast signal and, at 2021, the vessels collided bow to bow at approximately right angles. The Audrey says that the point of collision was about one mile southwest" }, { "docid": "14446214", "title": "", "text": "U.S.C.A. § 206; Steering and Sailing Rules for Inland Waters, art. 21. Prior to 1930 the Moisie Bay was approaching sea buoy “2CB”, slightly southeast of Chesapeake Bay Pilot Station off Cape Henry, at full sea speed on a course of 298° gyro and true. Navigational lights were set and burning ■brightly. Her master and second officer were on watch and, along with the wheelsman, were on the bridge. A lookout was posted on the flying bridge. At 2000 all but the master were relieved from their duties and a new watch took over. The third officer relieved the watch officer (second officer) but the latter remained on the bridge. The Maryland Pilot Boat had previously been contacted by radio and the Moisie Bay was instructed to report again upon passing ■buoy “2CB”. Upon reaching this point at approximately 1944, the Moisie Bay was directed to rendezvous for her Maryland pilot near buoy “2A”. At this time, when buoy “2CB” bore 044° true, 0.6 miles by radar, the course was changed from 298° to a heading of 315° by gyro to make good a course of 314° true in the direction of buoy “2A”. From this point the Moisie Bay approached the Pilot Station. That there were reductions in speed is conceded as it was necessary to do so in order that the pilot could board the vessel at the rendezvous point. The Audrey knew that the Moisie Bay was inbound headed northwesterly. She noted the exchange of Morse signal lights between the Moi-sie Bay and the pilot vessels. By taking bearings, the chief officer of the Audrey observed that the Moisie Bay was reducing her headway. At 2010 there were indications from the plotted observations that the Moisie Bay was experiencing a set to the westward. To compensate for this set, the compass heading was placed on 323° gyro, thus enabling her to make a basic course of 314° to the rendezvous point near buoy “2A”. The alert to “stand by” was received by the engine room of the Moisie Bay at 2001. Four minutes later her speed was" }, { "docid": "14446213", "title": "", "text": "is a Liberty type vessel, approximately 442 feet in length and 56 feet 10 inches in breadth. Her power is a steam reciprocating engine driving a single pro peller to a sea speed of about 11% knots. On the night of the collision the vessel was on a voyage from Hampton Roads, Virginia, to Denmark, laden by approximately 9,203 tons of coal. The two vessels were on converging courses, each crossing the path of the other in such a manner that the green .side light of the Audrey was off the port bow of the Moisie Bay, and the red side light of the latter bore broad on the starboard bow of the Audrey. The burdened vessel was, therefore, the Audrey, charged with the duty of slowing, stopping, or reversing her engines, if necessary, to avoid crossing ahead of the Moisie Bay. 33 U.S.C.A. §§ 204, 207, 208; Steering and Sailing Rules for Inland Waters, arts. 19, 22, 23. The Moisie Bay, as the privileged vessel, was required to keep her course and speed. 33 U.S.C.A. § 206; Steering and Sailing Rules for Inland Waters, art. 21. Prior to 1930 the Moisie Bay was approaching sea buoy “2CB”, slightly southeast of Chesapeake Bay Pilot Station off Cape Henry, at full sea speed on a course of 298° gyro and true. Navigational lights were set and burning ■brightly. Her master and second officer were on watch and, along with the wheelsman, were on the bridge. A lookout was posted on the flying bridge. At 2000 all but the master were relieved from their duties and a new watch took over. The third officer relieved the watch officer (second officer) but the latter remained on the bridge. The Maryland Pilot Boat had previously been contacted by radio and the Moisie Bay was instructed to report again upon passing ■buoy “2CB”. Upon reaching this point at approximately 1944, the Moisie Bay was directed to rendezvous for her Maryland pilot near buoy “2A”. At this time, when buoy “2CB” bore 044° true, 0.6 miles by radar, the course was changed from 298° to a" }, { "docid": "14446230", "title": "", "text": "weather conditions and visibility had not been excellent, such action on the part of the lookout could seriously prejudice the rights of the Moisie Bay. But it is well settled that, under such circumstances as existed on the night in question, the absence of a specific lookout is immaterial. In The Georg Dumois, 4 Cir., 153 F. 833, 835, it is said: “If the schooner was seen at a distance sufficiently great to have enabled the steamer to pass her in safety, then the collision must have been caused by some fault other than the absence of a lookout.” Assuming arguendo a statutory fault as to the absence of a lookout from 2010 to the moment of collision, it could not have been reasonably possible that such fault had anything to do with the collision. Nor is it of significance that, at 2010, the Moisie Bay did not give a one-blast signal when she adjusted her heading 8° right to 323° to compensate for the set that she was experiencing. At that time the Moisie Bay was just outside the line marking waters governed by Inland Rules, but the Audrey was plainly within the area governed by Inland Rules. A one-blast signal under International Rule 28(a), 33 U.S.C.A. § 147, means “I am altering my course to starboard.” Under the Pilot Rule for Inland Waters, 33 C.F.R. § 80.03, it signifies the same except that when two steam vessels are approaching each other at right-angles or obliquely, it is evidence of an intention of the vessel to the starboard to hold course and speed. It is fair to assume that, at the time stated, a whistle signal from the Moisie Bay would be reasonably interpreted under the Inland Rules. The Knoxville City (Isthmian S.S. Co. v. American-Hawaiian S.S. Co.), 9 Cir., 112 F.2d 223. If the signal had been given under Inland Rules, the Audrey would have been advised of nothing other than the fact that the Moisie Bay intended to hold course and speed in the maneuver it was undertaking in approaching the Pilot Station, all of which has" }, { "docid": "14446232", "title": "", "text": "been heretofore discussed. Upon consideration of the evidence as a whole it is manifest that the collision was undoubtedly due to the grossly improper navigation of the Audrey whose actions could not be anticipated. Were it necessary to so find, it would seem appropriate to invoke the major-minor fault rule. The City of New York, 147 U.S. 72, 13 S.Ct. 211, 37 L.Ed. 84; Webb v. Davis, 4 Cir., 236 F.2d 90. Any reasonable doubt as to the propriety of navigation on the part of the Moisie Bay should be resolved in her favor. The collision point was established by the Moisie Bay, through the use of her radar for direction and distance, as a position with buoy “2A” bearing 347° true, distant 0.6 of a mile. While undoubtedly this point is subject to minor variations, it is the most credible evidence available and is reasonably acceptable. The Audrey did not take any fix to ascertain her position in the collision area. As noted, the testimony presented by the Audrey is entitled to only slight credibility because of the glaring inconsistencies and the obvious fabrication of the log. To reconstruct the course and speed of the Audrey in light of the fabricated log and inconsistencies revealed by the testimony would be an impossible task. The most that can be accomplished is to summarize the Audrey’s version. Adjusting times to Moise Bay bridge time, as there was five minutes difference in the bridge times of each vessel, the following appears to be the sequence of events according to the Audrey testimony. At 2005, the vessel dropped her pilot just before Cape Henry Light came abeam, after which she put her engines full ahead and set her course on 85°. At that time the Moisie Bay was observed on the Audrey’s starboard bow, showing her red side light and her white masthead and range lights. At 2007 the Cape Henry Light was abeam distant one mile, at which time the Moisie Bay was broad on the Audrey’s starboard bow approximately 2.5 miles. The Audrey contends that her chief officer took frequent bearings" }, { "docid": "14446212", "title": "", "text": "WALTER E. HOFFMAN, District Judge. At approximately 2021 (Moisie Bay bridge time ) on March 24, 1957, during darkness and clear weather, with visibility good, wind moderate, and tide ebb, the Moisie Bay and Audrey collided in the vicinity of the approach to the Maryland Pilot Station off Cape Henry, Virginia. In separate proceedings consolidated for trial we have for consideration the determination of liability for damages occasioned by the impact. The Moisie Bay is a Norwegian vessel which, at the time stated, was under charter to Tankore Corporation. As a combination oil and bulk ore carrier constructed in 1955, she is 638 feet in length and 80.4 feet in beam. She has a steam turbine engine driving a single propeller to a sea speed of 14% to 15 knots with the propeller turning approximately 103 RPM. On the night of the collision the vessel was en route from San Juan, Peru, to Baltimore, Maryland, laden to a deep draft by approximately 22,699 tons of iron ore. The Audrey flies the flag of Greece and is a Liberty type vessel, approximately 442 feet in length and 56 feet 10 inches in breadth. Her power is a steam reciprocating engine driving a single pro peller to a sea speed of about 11% knots. On the night of the collision the vessel was on a voyage from Hampton Roads, Virginia, to Denmark, laden by approximately 9,203 tons of coal. The two vessels were on converging courses, each crossing the path of the other in such a manner that the green .side light of the Audrey was off the port bow of the Moisie Bay, and the red side light of the latter bore broad on the starboard bow of the Audrey. The burdened vessel was, therefore, the Audrey, charged with the duty of slowing, stopping, or reversing her engines, if necessary, to avoid crossing ahead of the Moisie Bay. 33 U.S.C.A. §§ 204, 207, 208; Steering and Sailing Rules for Inland Waters, arts. 19, 22, 23. The Moisie Bay, as the privileged vessel, was required to keep her course and speed. 33" }, { "docid": "14446237", "title": "", "text": "it is made the ground of a denial of further proof, and condemnation ensues from defects in the evidence which the party is not permitted to supply.” We do not believe, under the circumstances revealed by this record and the testimony of the handwriting expert, that any improper inferences should be drawn from the several changes in the Moisie Bay documents. On the other hand, while we may be justified in rejecting the Audrey’s claim for recovery because of her fabricated log entries, we have nevertheless analyzed all of the evidence to ascertain whether the Moisie Bay is entitled to full damages, attaching to such evidence all reasonable and proper inferences to be drawn therefrom. Stripped of all non-essentials this case narrows itself down to two points; one of fact and one of law. The factual issue is whether the Audrey log has been fabricated as this Court has now found. If the Court is in error as to this point, the case must be reversed and remanded. The legal question involves the interpretation of Article 21 requiring the privileged vessel to keep her course and speed in approaching a Pilot Station where such a fact is known by the burdened vessel. If the Court is correct on the issue respecting the fabricated log, but incorrect on its interpretation of Article 21, the situation would call for a division of damages. Holding that the Audrey was solely responsible for the collision on March 24, 1957, an appropriate decree will be prepared and presented by proctors for the Moisie Bay, with a reference of damages to a Commissioner. This memorandum is adopted by the Court in lieu of specific findings of fact and conclusions of law pursuant to General Admiralty Rule 46%, 28 U.S.C.A.; reserving to proctors for both parties the right to request specific findings as to matters, if any, not covered herein, providing said requests are not in the nature of reargument and are submitted within twenty days from this date. Supplemental Memorandum. Subsequent to the filing of the original memorandum herein, proctors for the Audrey requested, pursuant to" } ]

[ { "docid": "371287", "title": "", "text": "LNG tankship market and continues to possess the capacity to satisfy a substantial portion for the market. The contract also set forth the procedure by which Moss could terminate the conditional exclusivity If subsequent to 31 December 1971, Moss should determine for good and sufficient reason that Dynamics is not actively and successfully pursuing the market for Moss’ LNG tankships, or that Dynamics does not have the capacity or capability of satisfying a substantial part of such market, Moss may, after consultation with Dynamics, enter into license agreements with other U.S. shipyards for Tankships of 130,000 m3 or less. Moss shall not, however, enter into such other license agreements without giving Dynamics a reasonable opportunity to refute such determination. I find that as of December 31, 1971 General Dynamics had still not entered a single contract for the construction of an LNG tankship, and, indeed, in 1972 it was considering the possibility of closing its Quincy shipyard. I also find that Moss was not satisfied with General Dynamics’ pursuit of the LNG tankship market and in a telex dated March 15, 1972 it conveyed that dissatisfaction to General Dynamics. The telex expressed Moss’ doubt that General Dynamics was pursuing the market in an aggressive or successful manner or that General Dynamics had the capacity to satisfy a substantial portion of that market and indicated its intention of licensing other U.S. shipyards. General Dynamics responded in a telex dated March 21, 1972. It informed Moss that it would vigorously oppose any attempt by Moss to license other U.S. shipyards. On October 19, 1972 Moss, notified General Dynamics that after full discussion between the parties Moss had concluded that its design should be made available to other interested shipyards. It unequivocally stated that it was not bound by the exclusivity provision of the 1971 contract, but also stated that it would temporarily refrain from licensing the construction of ships with a cargo capacity of 130,000 m3 or less in order to maintain harmony between Moss and General Dynamics. I rule that the exclusivity provision of the 1971 contract was terminated by the" } ]

[ { "docid": "8580590", "title": "", "text": "in December 1994. There is no reason that MESC could not have discovered through the exercise of reasonable diligence that it did not receive all of the purchased assets. The Court finds that there are questions of fact as to whether MESC knew or should have known of its tort claims prior to plan confirmation. Accordingly, whether those claims are barred by res judicata and judicial estoppel are issues that are deferred until trial. Count I — Breach of Contract In Count I, MESC alleges that General Dynamics breached four provisions of the APA: §§ 2.1(d), 2.1(b), 2.1(e) and 3.5. The Court concludes that MESC’s Count I claims are barred by judicial estoppel as discussed above. As for three of the provisions, §§ 2.1(d), 2.1(b) and 3.5, the Court concludes that there are additional grounds for granting summary judgment. Section 2.1(d). MESC alleges that General Dynamics did not turn over all of the intellectual property purchased under the APA. But the evidence is undisputed that General Dynamics delivered each and every one of the items listed on Schedule 2.1(d) — the list of Intellectual Property assets to be conveyed. To get around this fact, MESC insists that it is entitled to intellectual property above and beyond that listed on Schedule 2.1(d). However, the Court finds that argument to be without merit, and that it is clear from the text of the APA that the only intellectual property that the parties intended to include in the transaction was listed on Schedule 2.1(d). The parties’ intent is shown by, among other things, Section 2.1 of the APA, which states that General Dynamics would sell to MESC “all of the assets of the Business, other than the Excluded Assets .... ” In turn, Section 2.2 specifies that assets are “Excluded Assets” unless they are included on a schedule. Thus, the only intellectual property assets MESC purchased were listed on Schedule 2.1(d). Furthermore, if there had been any doubt as to the parties’ intentions, it was removed by the Amendment in which the parties agreed that the schedules to the APA were “complete and" }, { "docid": "8580588", "title": "", "text": "Bankruptcy Code tolled the statute of limitations for MESC’s claims, the statute of limitations is no longer a viable defense to MESC’s claims in this adversary proceeding. Res Judicata and Judicial Estoppel General Dynamics contends that all of MESC’s claims are barred by the doctrines of res judicata and judicial estoppel. Under the doctrine of res judicata, a bankruptcy court’s order of confirmation is treated as a final judgment with res judicata effect. Varat Enterprises, Inc. v. Nelson, Mullins, Riley and Scarborough, 81 F.3d 1310, 1315. Pursuant to 11 U.S.C. § 1141(a), all parties are bound by the terms of a confirmed plan of reorganization. Id. “Consequently, parties may be precluded from raising claims or issues that they could have or should have raised before confirmation of a bankruptcy plan, but failed to do so.” Id. Similarly, under the doctrine of judicial estoppel, a Chapter 11 debtor’s failure to disclose a claim in its Schedules or Disclosure Statement bars the debtor from litigating that claim after confirmation of a plan of reorganization. See, e.g., Oneida Motor Freight Inc. v. United Jersey Bank, 848 F.2d 414 (3d Cir.1988); Payless Wholesale Distribs., Inc. v. Alberto Culver (P.R.) Inc., 989 F.2d 570, 571-72 (1st Cir.1993); Monroe County Oil Co. v. Amoco Oil Company, 75 B.R. 158,162 (S.D.Ind.1987). The Court finds that MESC’s Count I claim for breach of contract is barred by judicial estoppel. MESC did not disclose its claim until after the confirmation of the plan of reorganization. It was only then that MESC disclosed its claims by filing this action. While MESC has alleged that it did not learn of its purported claims until after the confirmation order had been entered, this contention is negated as to its breach of contract claims by the admissions of Saul Gliserman, MESC’s former General Counsel. At his deposition, Mr. Gliserman testified that MESC was aware as early as 1995 that it had not received certain assets that it contends it should have received under the APA. Moreover, the APA specifies that the assets were due to be transferred at the closing of the transaction," }, { "docid": "8580596", "title": "", "text": "for breach of an implied term of that agreement. MESC’s contention that General Dynamics breached the implied covenant by terminating the MOU in November 1993 fares no better. The MOU would have expired by its own terms in September 1994. Thus, it is irrelevant who terminated the agreement. Moreover, MESC lacks evidence to support its assertion. The facts are that Westinghouse terminated the MOU unilaterally pursuant to an April 22, 1994 letter — a letter that was shared with MESC almost immediately and which was listed in the exhibits to the APA. The Court, therefore, grants summary judgment as to Count II. Count III — Specific Performance In Count III, MESC seeks specific performance of the APA. However, specific performance is a remedy, not a'claim. In order to establish that it is entitled to the. equitable remedy of specific performance, MESC must first show that General Dynamics breached the APA. See Vaughan v. Creekside Homes, Inc., Civ. A. No. 1043, 1994 WL 586832, at *4 (Del.Ch. June 17, 1994) (master’s report) (“The remedy of specific performance is limited to rights arising out of a contractual relationship.”), approved, Civ. A. No. 1043-S, 1994 WL 586833, at *1 (Del. Ch. Oct. 7, 1994). Because the Court grants summary judgment as to MESC’s claim for breach of contract, it also grants summary judgment on its “claim” for specific performance. Count IV — Fraud According to MESC, General Dynamics defrauded it by means of false statements in the GS Document. In its motion, Gen eral Dynamics maintains that summary judgment should be granted because MESC could not have reasonably relied on statements in the GS Document in light of the non-reliance provision in the Confidentiality Agreement and §§ 3.14 and 10.10 of the APA. In the alternative, General Dynamics contends that MESC’s fraud claim fails as a matter of law because MESC cannot show that the GS Document contains any false statements. The Court has doubts as to whether MESC can prevail on its fraud claim. Nonetheless, it concludes that there are genuine issues of fact that preclude the entry of summary judgment on" }, { "docid": "8580576", "title": "", "text": "ORDER GRANTING, IN PART, SUMMARY JUDGMENT MOTION OF DEFENDANTS GENERAL DYNAMICS CORPORATION AND ELECTRIC BOAT CORPORATION, AND DENYING CROSS-MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF, W. RYAN HOVIS, TRUSTEE FOR MARINE ENERGY SYSTEMS CORPORATION WM. THURMOND BISHOP, Chief Judge. Before this Court are (1) a Motion for Summary Judgment, filed on October 13, 2004, by defendants General Dynamics Corporation and Electric Boat Corporation (collectively, General Dynamics), and (2) a Cross-Motion for Partial Summary Judgment, filed on October 13, 2004, by plaintiff, W. Ryan Hovis, as Chapter 7 Trustee for Marine Energy Systems Corporation (MESC). The parties submitted opposition briefs and reply briefs to the respective motions and oral argument was had on the motions at a hearing in Charleston, South Carolina on February 3, 2005. For the reasons set forth herein, summary judgment is granted in favor of General Dynamics as to Counts I, II, III, V, VI, VIII and XII of the Second Amended Complaint, denied as to Counts IV and VII; and MESC’s Cross-Motion for Partial Summary Judgment is denied in its entirety. FINDINGS OF FACT 1. General Dynamics owned a facility in Charleston, South Carolina, which it used in the 1970s to manufacture tanks for the transportation of liquefied natural gas (LNG). After the company suspended LNG tank production in 1980, the Charleston facility was put to other uses, including building parts for nuclear submarines, producing waste treatment tanks and constructing hydrofoils. 2. In late 1993, General Dynamics decided to sell the assets of the Charleston facility. It retained Goldman Sachs to help with the transaction. 3. Soon after being retained, Goldman Sachs prepared a document (GS Document) that described the business opportunity presented by the Charleston facility. The majority of the GS Document was devoted to the possible resumption of the LNG-tank manufacturing business. The GS Document also contained a short section describing the possible use of the facility to manufacture barge mounted power plants (BMPPs). Goldman Sachs distributed the GS Document to potential investors. 4. Goldman Sachs required potential investors to execute and return a confidentiality agreement (Confidentiality Agreement), prior to receiving a copy of the" }, { "docid": "8580595", "title": "", "text": "a judicial convention designed to protect the spirit of an agreement when, without violating an express term of the agreement, one side uses oppressive or underhanded tactics to deny the other side the fruits of the parties’ bargain.” Id. The covenant cannot contravene the parties’ express agreement or be used to forge a new agreement beyond the written language. Cincinnati SMSA Ltd. P’ship v. Cincinnati Bell Cellular Sys. Co., 708 A.2d 989, 992 (Del. 1998). In Count II, MESC contends that General Dynamics breached the implied covenant by (1) misrepresenting facts concerning the BMPP and LNG businesses in the Goldman Sachs GS Document and (2) by allegedly terminating the MOU in November 1993. Both of MESC’s contentions fail as a matter of law. With respect to the first contention, the APA contains an integration clause that provides that the APA “supersedes any prior understandings, agreements or representations by or among the parties.” (APA § 10.10.) Statements in the GS Document are, thus, not part of the APA and cannot form the basis for a claim for breach of an implied term of that agreement. MESC’s contention that General Dynamics breached the implied covenant by terminating the MOU in November 1993 fares no better. The MOU would have expired by its own terms in September 1994. Thus, it is irrelevant who terminated the agreement. Moreover, MESC lacks evidence to support its assertion. The facts are that Westinghouse terminated the MOU unilaterally pursuant to an April 22, 1994 letter — a letter that was shared with MESC almost immediately and which was listed in the exhibits to the APA. The Court, therefore, grants summary judgment as to Count II. Count III — Specific Performance In Count III, MESC seeks specific performance of the APA. However, specific performance is a remedy, not a'claim. In order to establish that it is entitled to the. equitable remedy of specific performance, MESC must first show that General Dynamics breached the APA. See Vaughan v. Creekside Homes, Inc., Civ. A. No. 1043, 1994 WL 586832, at *4 (Del.Ch. June 17, 1994) (master’s report) (“The remedy of specific" }, { "docid": "8580594", "title": "", "text": "it had. In addition, the APA expressly contemplated Westinghouse’s right to use certain of the intellectual property. In Section 2.1(d) of the APA, the parties agreed that General Dynamics’ obligation to convey the intellectual property was “subject to the limitations of any memorandums of understanding ... in effect with respect to the assets listed on Schedule 2.1(d).” The MOU was one such memorandum of understanding. Indeed, it is the only MOU that the parties have identified. Furthermore, MESC received a copy of the MOU, and the MOU was specifically listed in the exhibits to the APA. Count II — Breach of the Implied Covenant of Good Faith The implied covenant of good faith and fair dealing exists in every contract. See Chamison v. HealthTrust, Inc. the Hosp. Co., 735 A.2d 912, 920 (Del.Ch. 1999); see also Adams v. G.J. Creel & Sons, Inc., 320 S.C. 274, 277, 465 S.E.2d 84, 85 (1995). It requires parties to interpret and act reasonably upon the language of their agreement. Chamison, 735 A.2d at 920. “This implied covenant is a judicial convention designed to protect the spirit of an agreement when, without violating an express term of the agreement, one side uses oppressive or underhanded tactics to deny the other side the fruits of the parties’ bargain.” Id. The covenant cannot contravene the parties’ express agreement or be used to forge a new agreement beyond the written language. Cincinnati SMSA Ltd. P’ship v. Cincinnati Bell Cellular Sys. Co., 708 A.2d 989, 992 (Del. 1998). In Count II, MESC contends that General Dynamics breached the implied covenant by (1) misrepresenting facts concerning the BMPP and LNG businesses in the Goldman Sachs GS Document and (2) by allegedly terminating the MOU in November 1993. Both of MESC’s contentions fail as a matter of law. With respect to the first contention, the APA contains an integration clause that provides that the APA “supersedes any prior understandings, agreements or representations by or among the parties.” (APA § 10.10.) Statements in the GS Document are, thus, not part of the APA and cannot form the basis for a claim" }, { "docid": "8580600", "title": "", "text": "315 S.C. 447, 467, 434 S.E.2d 296, 308 (Ct.App. 1993). Here, the relationship was not only “too attenuated”; it was non-existent. The evidence is undisputed that General Dynamics and Westinghouse entered into the MOU in September 1992. Westinghouse terminated the agreement before the APA was signed. Indeed, MESC asserts that it was terminated in November 1993, which was prior to the time that MESC and General Dynamics first encountered one another. General Dynamics could not have owed a duty of care to MESC prior to the time that MESC and General Dynamics had anything to do with one another. Accordingly, summary judgment is granted as to MESC’s negligence claim. See Morris v. Mooney, 288 S.C. 447, 449, 343 S.E.2d 442, 443-44 (1986) (dismissing negligence claim because defendant owed no duty to plaintiff); see also S.C. State Ports Auth. v. Booz-Allen & Hamilton, Inc., 289 S.C. 373, 376, 346 S.E.2d 324, 325 (1986) (“The absence of any one of [the negligence] elements renders the cause of action insufficient.”). Count VII — Negligent Misrepresentation MESC alleges, as an alternative to its fraud claim, that General Dynamics is liable for the tort of negligent misrepresentation. General Dynamics contends in its motion that this claim is barred as a matter of law by the “economic loss doctrine.” See Bishop Logging Co. v. John Deere Indus., Equip., Co., 317 S.C. 520, 455 S.E.2d 183 (Ct.App.1995). It also contends that the claim is legally deficient on the same grounds it sought summary judgment on MESC’s fraud claim. As with the claim for fraud, the Court concludes that there are genuine issues of material fact that prevent the entry of summary judgment on MESC’s Count VII claim for negligent misrepresentation. Count VIII — Detrimental Reliance In Count VIII, MESC attempts to assert a claim for “detrimental reliance.” South Carolina does not recognize a cause of action by that name, and MESC conceded as much in its papers and at the hearing. Summary judgment is entered in General Dynamics’ favor on this count. Count IX — Conspiracy General Dynamics contends that MESC’s conspiracy count fails as a matter" }, { "docid": "8580593", "title": "", "text": "because some of the items of intellectual property listed on Schedule 2.1(d) were jointly developed by General Dynamics and Westinghouse pursuant to the MOU, and, as a result, Westinghouse also had the right to use those assets. In Section 3.5 of the APA, General Dynamics represented that the intellectual property was “free and clear of any Lien” and that “Seller has not received any notice of infringement of or conflict with 'asserted rights of others.” The undisputed evidence shows that General Dynamics complied with these representations. There is no evidence that MESC had any problem with its ability to use any of the purchased assets. The fact that Westinghouse may also have had the right to use certain of the intellectual property is beside the point. In Section 2.1 of the APA, General Dynamics pledged that it would “sell, transfer, convey and deliver” to MESC “all of [its] right, title and interest in and to” the purchased assets. General Dynamics did exactly that. It transferred to MESC all of the interest in the assets that it had. In addition, the APA expressly contemplated Westinghouse’s right to use certain of the intellectual property. In Section 2.1(d) of the APA, the parties agreed that General Dynamics’ obligation to convey the intellectual property was “subject to the limitations of any memorandums of understanding ... in effect with respect to the assets listed on Schedule 2.1(d).” The MOU was one such memorandum of understanding. Indeed, it is the only MOU that the parties have identified. Furthermore, MESC received a copy of the MOU, and the MOU was specifically listed in the exhibits to the APA. Count II — Breach of the Implied Covenant of Good Faith The implied covenant of good faith and fair dealing exists in every contract. See Chamison v. HealthTrust, Inc. the Hosp. Co., 735 A.2d 912, 920 (Del.Ch. 1999); see also Adams v. G.J. Creel & Sons, Inc., 320 S.C. 274, 277, 465 S.E.2d 84, 85 (1995). It requires parties to interpret and act reasonably upon the language of their agreement. Chamison, 735 A.2d at 920. “This implied covenant is" }, { "docid": "8580591", "title": "", "text": "listed on Schedule 2.1(d) — the list of Intellectual Property assets to be conveyed. To get around this fact, MESC insists that it is entitled to intellectual property above and beyond that listed on Schedule 2.1(d). However, the Court finds that argument to be without merit, and that it is clear from the text of the APA that the only intellectual property that the parties intended to include in the transaction was listed on Schedule 2.1(d). The parties’ intent is shown by, among other things, Section 2.1 of the APA, which states that General Dynamics would sell to MESC “all of the assets of the Business, other than the Excluded Assets .... ” In turn, Section 2.2 specifies that assets are “Excluded Assets” unless they are included on a schedule. Thus, the only intellectual property assets MESC purchased were listed on Schedule 2.1(d). Furthermore, if there had been any doubt as to the parties’ intentions, it was removed by the Amendment in which the parties agreed that the schedules to the APA were “complete and accurately reflected] the list of assets to be purchased.” The Amendment, thus, confirmed that the assets listed on Schedule 2.1(d) were the only intellectual property assets to which MESC was entitled. Section 2.1(b). MESC contends that General Dynamics breached Section 2.1(b) of the APA by failing to deliver the proposals listed on Schedule 2.1(b) of the agreement. Schedule 2.1(b) lists 14 budgetary estimates and a letter of understanding. The evidence is undisputed that General Dynamics physically delivered copies of the documents. While MESC alleges that General Dynamics breached the APA by canceling the budgetary estimates, there is no evidence that this occurred. In any event, it is irrelevant whether General Dynamics cancelled the budgetary estimates because they were intended to remain in effect only for limited periods of time and they would have expired prior to the APA closing. Indeed, the budgetary estimates shown on Schedule 2.1(b) each included a “validity” date specifying the date on which each estimate would expire. Section 3.5. MESC also contends that General Dynamics breached § 3.5 of the APA" }, { "docid": "8580581", "title": "", "text": "mutual written agreement or terminated in accordance with its terms. (TSA § 3(a).) 10. On October 27, 1994, General Dynamics and MESC entered into an Amendment to the APA (the Amendment). In it, MESC and General Dynamics endeavored to eliminate any possible uncertainty as to the identity of the assets that were the subject of the transaction. They agreed in the Amendment, in pertinent part, as follows: Section 1. Schedules. The Seller and the Purchaser hereby acknowledge that the Schedules delivered by the Seller to the Purchaser pursuant to the terms of the Asset Purchase Agreement, dated as of June 10, 1994, by and between the Seller and the Purchaser (the “Asset Purchase Agreement ”) are complete and accurately reflect the list of assets to be purchased by the Purchaser pursuant to the Asset Purchase Agreement. 11. The APA closed on December 22, 1994. The entire $12 million purchase price was borrowed by New Charleston Capital from the State of South Carolina, Jobs Economic Development Authority. Upon closing, New Charleston Capital transferred the purchased assets to Marine Energy Systems Corporation (MESC), a South Carolina corporation created for the purpose of receiving the purchased assets. Gilliam was MESC’s sole shareholder and chairman. (MESC and New Charleston Capital are collectively referred to hereafter as MESC.) 12. As MESC’s former general counsel Saul Gliserman testified at his deposition that, in 1995 and 1996, Gilliam and other MESC representatives had numerous discussions with Westinghouse and others in which they complained about General Dynamics’ alleged failure to turn over intellectual property. There were meetings at which the subject was discussed in Orlando, Florida; Charleston, South Carolina; Washington, D.C. and New York, New York. In the same time frame, MESC communicated its belief to General Dynamics that General Dynamics should have turned over certain technology as part of the APA. 13. In 1997, MESC filed for bankruptcy under Chapter 11. As a debtor-in-possession, MESC filed its plan of reorganization in May 1998. (Modified Second Amended Plan, May 4,1998, amended July 18, 1998.) This Court confirmed the plan on July 2, 1998. The confirmation order made no" }, { "docid": "8580592", "title": "", "text": "accurately reflected] the list of assets to be purchased.” The Amendment, thus, confirmed that the assets listed on Schedule 2.1(d) were the only intellectual property assets to which MESC was entitled. Section 2.1(b). MESC contends that General Dynamics breached Section 2.1(b) of the APA by failing to deliver the proposals listed on Schedule 2.1(b) of the agreement. Schedule 2.1(b) lists 14 budgetary estimates and a letter of understanding. The evidence is undisputed that General Dynamics physically delivered copies of the documents. While MESC alleges that General Dynamics breached the APA by canceling the budgetary estimates, there is no evidence that this occurred. In any event, it is irrelevant whether General Dynamics cancelled the budgetary estimates because they were intended to remain in effect only for limited periods of time and they would have expired prior to the APA closing. Indeed, the budgetary estimates shown on Schedule 2.1(b) each included a “validity” date specifying the date on which each estimate would expire. Section 3.5. MESC also contends that General Dynamics breached § 3.5 of the APA because some of the items of intellectual property listed on Schedule 2.1(d) were jointly developed by General Dynamics and Westinghouse pursuant to the MOU, and, as a result, Westinghouse also had the right to use those assets. In Section 3.5 of the APA, General Dynamics represented that the intellectual property was “free and clear of any Lien” and that “Seller has not received any notice of infringement of or conflict with 'asserted rights of others.” The undisputed evidence shows that General Dynamics complied with these representations. There is no evidence that MESC had any problem with its ability to use any of the purchased assets. The fact that Westinghouse may also have had the right to use certain of the intellectual property is beside the point. In Section 2.1 of the APA, General Dynamics pledged that it would “sell, transfer, convey and deliver” to MESC “all of [its] right, title and interest in and to” the purchased assets. General Dynamics did exactly that. It transferred to MESC all of the interest in the assets that" }, { "docid": "8580580", "title": "", "text": "Nicker-son.) General Dynamics informed Gilliam within a matter of days that the MOU had been terminated. . 8. The APA, dated June 10, 1994, provided that General Dynamics would sell and Gilliam’s company, New Charleston Capital, would purchase “certain specified assets associated with [General Dynamics’] Charleston, South Carolina facility.” (APA at 1.) The assets to be acquired were listed on schedules to the APA. In consideration for the assets, MESC agreed to pay $12 million at the closing; plus it agreed to pay General Dynamics royalties on sales of LNG tanks and BMPPs. (APA §§ 2.5 and 2.6.) 9. As part of the deal, the parties also agreed to a Technical Support Agreement (TSA), pursuant to which General Dynamics agreed to provide engineering support services to New Charleston Capital, including design and engineering services relating to the manufacture of LNG tanks and BMPPs. (APA § 6.4 and Exh. C thereto.) Work performed under the TSA would be billed to New Charleston Capital. (TSA § 4(b).) The TSA expired on July 30, 1999, unless extended by mutual written agreement or terminated in accordance with its terms. (TSA § 3(a).) 10. On October 27, 1994, General Dynamics and MESC entered into an Amendment to the APA (the Amendment). In it, MESC and General Dynamics endeavored to eliminate any possible uncertainty as to the identity of the assets that were the subject of the transaction. They agreed in the Amendment, in pertinent part, as follows: Section 1. Schedules. The Seller and the Purchaser hereby acknowledge that the Schedules delivered by the Seller to the Purchaser pursuant to the terms of the Asset Purchase Agreement, dated as of June 10, 1994, by and between the Seller and the Purchaser (the “Asset Purchase Agreement ”) are complete and accurately reflect the list of assets to be purchased by the Purchaser pursuant to the Asset Purchase Agreement. 11. The APA closed on December 22, 1994. The entire $12 million purchase price was borrowed by New Charleston Capital from the State of South Carolina, Jobs Economic Development Authority. Upon closing, New Charleston Capital transferred the purchased assets" }, { "docid": "8580599", "title": "", "text": "to meet the elements necessary to show constructive fraud.”); Poco-Grande Invs. v. C & S Family Credit, Inc., 301 S.C. 323, 325, 391 S.E.2d 735, 735-36 (Ct.App.1990) (affirming summary judgment on constructive fraud claim where arm’s length transaction with “sophisticated and mature businessmen”). Count VI — Negligence In Count VI, MESC contends that General Dynamics was negligent because it failed to stamp the word “confidential” on documents given to Westinghouse under the MOU. MESC maintains that, as a consequence, Westinghouse gained access to proprietary information relating to the construction of BMPPs that it would not otherwise have had. To establish the tort of negligence, the plaintiff must demonstrate, among other elements, a duty of care owed by the defendant. Regions Bank v. Schmauch, 354 S.C. 648, 668, 582 S.E.2d 432, 443 (Ct.App.2003). “It is essential to liability for negligence to attach that the parties shall have sustained a relationship recognized by law as the foundation of a duty of care. Where this relationship is ‘too attenuated,’ a duty will not arise.” Ravan v. Greenville County, 315 S.C. 447, 467, 434 S.E.2d 296, 308 (Ct.App. 1993). Here, the relationship was not only “too attenuated”; it was non-existent. The evidence is undisputed that General Dynamics and Westinghouse entered into the MOU in September 1992. Westinghouse terminated the agreement before the APA was signed. Indeed, MESC asserts that it was terminated in November 1993, which was prior to the time that MESC and General Dynamics first encountered one another. General Dynamics could not have owed a duty of care to MESC prior to the time that MESC and General Dynamics had anything to do with one another. Accordingly, summary judgment is granted as to MESC’s negligence claim. See Morris v. Mooney, 288 S.C. 447, 449, 343 S.E.2d 442, 443-44 (1986) (dismissing negligence claim because defendant owed no duty to plaintiff); see also S.C. State Ports Auth. v. Booz-Allen & Hamilton, Inc., 289 S.C. 373, 376, 346 S.E.2d 324, 325 (1986) (“The absence of any one of [the negligence] elements renders the cause of action insufficient.”). Count VII — Negligent Misrepresentation MESC alleges, as" }, { "docid": "8580587", "title": "", "text": "favor of the nonmoving party must “fall within the range of reasonable probability and not be so tenuous as to amount to speculation or conjecture.” Id. LEGAL ANALYSIS MESC asserts nine claims against General Dynamics in its Second Amended Complaint: Count I — Breach of Contract; Count II — Breach of the Implied Covenant of Good Faith and Fair Dealing; Count III — Specific Performance; Count TV— Fraud; Count V — Constructive Fraud; Count VI — Negligence; Count VII- — Negligent Misrepresentation; Count VIII— Detrimental Reliance; and Count XII— Conspiracy. Counts IX, X and XI were asserted solely against the Westinghouse defendants and have been dismissed previously. For the reasons set forth below, General Dynamics’ motion for summary judgment is granted as to all counts against it except for Count IV — Fraud and Count VII— Negligent Misrepresentation. In addition, MESC’s cross-motion for partial summary judgment is denied in its entirety. I. GENERAL DYNAMICS’ MOTION FOR SUMMARY JUDGMENT Statute of Limitations As counsel for General Dynamics conceded at the outset that the provisions of the Bankruptcy Code tolled the statute of limitations for MESC’s claims, the statute of limitations is no longer a viable defense to MESC’s claims in this adversary proceeding. Res Judicata and Judicial Estoppel General Dynamics contends that all of MESC’s claims are barred by the doctrines of res judicata and judicial estoppel. Under the doctrine of res judicata, a bankruptcy court’s order of confirmation is treated as a final judgment with res judicata effect. Varat Enterprises, Inc. v. Nelson, Mullins, Riley and Scarborough, 81 F.3d 1310, 1315. Pursuant to 11 U.S.C. § 1141(a), all parties are bound by the terms of a confirmed plan of reorganization. Id. “Consequently, parties may be precluded from raising claims or issues that they could have or should have raised before confirmation of a bankruptcy plan, but failed to do so.” Id. Similarly, under the doctrine of judicial estoppel, a Chapter 11 debtor’s failure to disclose a claim in its Schedules or Disclosure Statement bars the debtor from litigating that claim after confirmation of a plan of reorganization. See, e.g., Oneida" }, { "docid": "8580582", "title": "", "text": "to Marine Energy Systems Corporation (MESC), a South Carolina corporation created for the purpose of receiving the purchased assets. Gilliam was MESC’s sole shareholder and chairman. (MESC and New Charleston Capital are collectively referred to hereafter as MESC.) 12. As MESC’s former general counsel Saul Gliserman testified at his deposition that, in 1995 and 1996, Gilliam and other MESC representatives had numerous discussions with Westinghouse and others in which they complained about General Dynamics’ alleged failure to turn over intellectual property. There were meetings at which the subject was discussed in Orlando, Florida; Charleston, South Carolina; Washington, D.C. and New York, New York. In the same time frame, MESC communicated its belief to General Dynamics that General Dynamics should have turned over certain technology as part of the APA. 13. In 1997, MESC filed for bankruptcy under Chapter 11. As a debtor-in-possession, MESC filed its plan of reorganization in May 1998. (Modified Second Amended Plan, May 4,1998, amended July 18, 1998.) This Court confirmed the plan on July 2, 1998. The confirmation order made no mention of any possible claims against General Dynamics. MESC did not list any claims against General Dynamics in any of its disclosure statements. (See Modified Revised Second Amended Disclosure Statement, May 4,1998.) MESC also failed to list any claims against General Dynamics in its schedules and statements. 14. On October 15, 1998, MESC filed an adversary proceeding against General Dynamics. It alleged two counts: one for breach of contract and the other for reformation. In the contract claim, MESC asserted that General Dynamics breached the APA by not turning over certain unidentified intellectual property. The reformation count pleaded in the alternative that, if the actual language of the APA did not carry out the intent of the parties to convey the intellectual property, then the allegedly defective wording “was inserted by, or appropriate language was omitted by, the Defendants ... through fraud, accident or mistake.” (Original Compl. ¶ 38.) MESC asked the Court to reform the APA to reflect the parties’ purported intent that such property be included. (Id.) 15. The plan of reorganization failed," }, { "docid": "8580579", "title": "", "text": "the time, Gilliam was the chairman and sole shareholder of New Charleston Capital, an investment firm based in Charleston. In his capacity as chairman of New Charleston Capital, Gilliam signed the Confidentiality Agreement. 6. Goldman Sachs sent Gilliam a copy of the GS Document. After receiving the GS Document, Gilliam and other MESC representatives engaged in discussions with Goldman Sachs and General Dynamics, which led to the execution of an Asset Purchase Agreement, dated June 10, 1994 (the APA). 7. In 1992, before General Dynamics had any dealings with Gilliam, General Dynamics entered into a memorandum of understanding (the MOU) with Westinghouse Electric Corporation (Westinghouse). The purpose of the MOU was to encourage the two companies to work together in the area of BMPPs. By its own terms, the MOU automatically expired in September 1994. (MOU § 3.1.) The MOU provided that either party could unilaterally terminate the MOU at any time. (Id. §§ 3.1 and 4.4.) By letter dated April 22, 1994, Westinghouse elected to terminate the MOU. (Letter from R. Zwirn to D. Nicker-son.) General Dynamics informed Gilliam within a matter of days that the MOU had been terminated. . 8. The APA, dated June 10, 1994, provided that General Dynamics would sell and Gilliam’s company, New Charleston Capital, would purchase “certain specified assets associated with [General Dynamics’] Charleston, South Carolina facility.” (APA at 1.) The assets to be acquired were listed on schedules to the APA. In consideration for the assets, MESC agreed to pay $12 million at the closing; plus it agreed to pay General Dynamics royalties on sales of LNG tanks and BMPPs. (APA §§ 2.5 and 2.6.) 9. As part of the deal, the parties also agreed to a Technical Support Agreement (TSA), pursuant to which General Dynamics agreed to provide engineering support services to New Charleston Capital, including design and engineering services relating to the manufacture of LNG tanks and BMPPs. (APA § 6.4 and Exh. C thereto.) Work performed under the TSA would be billed to New Charleston Capital. (TSA § 4(b).) The TSA expired on July 30, 1999, unless extended by" }, { "docid": "8580601", "title": "", "text": "an alternative to its fraud claim, that General Dynamics is liable for the tort of negligent misrepresentation. General Dynamics contends in its motion that this claim is barred as a matter of law by the “economic loss doctrine.” See Bishop Logging Co. v. John Deere Indus., Equip., Co., 317 S.C. 520, 455 S.E.2d 183 (Ct.App.1995). It also contends that the claim is legally deficient on the same grounds it sought summary judgment on MESC’s fraud claim. As with the claim for fraud, the Court concludes that there are genuine issues of material fact that prevent the entry of summary judgment on MESC’s Count VII claim for negligent misrepresentation. Count VIII — Detrimental Reliance In Count VIII, MESC attempts to assert a claim for “detrimental reliance.” South Carolina does not recognize a cause of action by that name, and MESC conceded as much in its papers and at the hearing. Summary judgment is entered in General Dynamics’ favor on this count. Count IX — Conspiracy General Dynamics contends that MESC’s conspiracy count fails as a matter of law for a variety of reasons. The Court need not reach these arguments, however, because MESC agreed to the dismissal with prejudice of its Count XII conspiracy claim as part of its December 16, 2004 settlement with Westinghouse. Summary judgment is granted as to Count XII. II. MESC’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT MESC contends in its cross-motion for summary judgment that there are no genuine issues of disputed fact and judgment should be entered in its favor as a matter of law with respect to liability issues regarding its claims for breach of contract (Count I), breach of the implied covenant (Count II), fraud (Count TV), constructive fraud (Count V), negligence (Count VI) and negligent misrepresentation (Count VII). Its motion is for partial summary judgment, as it does not contend that it is entitled to a judgment at this time with respect to the amount of damages. The Court concludes that MESC’s motion should be denied. MESC is not entitled to summary judgment on its claims for breach of contract, breach of the" }, { "docid": "8580577", "title": "", "text": "OF FACT 1. General Dynamics owned a facility in Charleston, South Carolina, which it used in the 1970s to manufacture tanks for the transportation of liquefied natural gas (LNG). After the company suspended LNG tank production in 1980, the Charleston facility was put to other uses, including building parts for nuclear submarines, producing waste treatment tanks and constructing hydrofoils. 2. In late 1993, General Dynamics decided to sell the assets of the Charleston facility. It retained Goldman Sachs to help with the transaction. 3. Soon after being retained, Goldman Sachs prepared a document (GS Document) that described the business opportunity presented by the Charleston facility. The majority of the GS Document was devoted to the possible resumption of the LNG-tank manufacturing business. The GS Document also contained a short section describing the possible use of the facility to manufacture barge mounted power plants (BMPPs). Goldman Sachs distributed the GS Document to potential investors. 4. Goldman Sachs required potential investors to execute and return a confidentiality agreement (Confidentiality Agreement), prior to receiving a copy of the GS Document. The Confidentiality Agreement included a non-reliance provision, which read as follows: We acknowledge that neither you, nor Goldman Sachs or its affiliates, nor your other Representatives, nor any of your or their respective officers, directors, employees, agents or controlling persons within the meaning of Rule 12b-2 under the Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the accuracy or completeness of the information, and we agree that no such person will have any liability relating to the information or for any errors therein or omissions therefrom. We further agree that we are not entitled to rely on the accuracy or completeness of the information and that we will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and restrictions as may be contained therein. (Confidentiality Agreement ¶ 5.) 5. In early 1994, William J. Gilliam (Gilliam) expressed interest in acquiring assets of the Charleston facility. At" }, { "docid": "8580583", "title": "", "text": "mention of any possible claims against General Dynamics. MESC did not list any claims against General Dynamics in any of its disclosure statements. (See Modified Revised Second Amended Disclosure Statement, May 4,1998.) MESC also failed to list any claims against General Dynamics in its schedules and statements. 14. On October 15, 1998, MESC filed an adversary proceeding against General Dynamics. It alleged two counts: one for breach of contract and the other for reformation. In the contract claim, MESC asserted that General Dynamics breached the APA by not turning over certain unidentified intellectual property. The reformation count pleaded in the alternative that, if the actual language of the APA did not carry out the intent of the parties to convey the intellectual property, then the allegedly defective wording “was inserted by, or appropriate language was omitted by, the Defendants ... through fraud, accident or mistake.” (Original Compl. ¶ 38.) MESC asked the Court to reform the APA to reflect the parties’ purported intent that such property be included. (Id.) 15. The plan of reorganization failed, and on November 19, 1998, MESC’s bankruptcy was converted to a Chapter 7. The Court appointed W. Ryan Hovis to act as Trustee. In November 1998, General Dynamics moved to dismiss the complaint. This Court granted the motion in part and denied it in part, striking part of Count I and all of Count II. (Order of October 28, 1999.) MESC filed an amended complaint in January 2000, asserting five counts. Count I asserted the pre-existing claim for breach of contract. The amended complaint added counts for breach of the implied covenant of good faith, specific performance, fraud and constructive fraud. On June 26, 2003, MESC filed a “Third Amended Complaint,” which added Westinghouse and Viacom, Inc. as defendants and expanded the number of counts to thirteen. The Third Amended Complaint (hereafter the Complaint) added claims against General Dynamics for negligence, negligent misrepresentation, detrimental reliance, and conspiracy. It also substantially expanded the allegations in its preexisting breach of contract and fraud claims. 16. The Third Amended Complaint asserted four claims against Westinghouse: breach of contract" }, { "docid": "8580589", "title": "", "text": "Motor Freight Inc. v. United Jersey Bank, 848 F.2d 414 (3d Cir.1988); Payless Wholesale Distribs., Inc. v. Alberto Culver (P.R.) Inc., 989 F.2d 570, 571-72 (1st Cir.1993); Monroe County Oil Co. v. Amoco Oil Company, 75 B.R. 158,162 (S.D.Ind.1987). The Court finds that MESC’s Count I claim for breach of contract is barred by judicial estoppel. MESC did not disclose its claim until after the confirmation of the plan of reorganization. It was only then that MESC disclosed its claims by filing this action. While MESC has alleged that it did not learn of its purported claims until after the confirmation order had been entered, this contention is negated as to its breach of contract claims by the admissions of Saul Gliserman, MESC’s former General Counsel. At his deposition, Mr. Gliserman testified that MESC was aware as early as 1995 that it had not received certain assets that it contends it should have received under the APA. Moreover, the APA specifies that the assets were due to be transferred at the closing of the transaction, in December 1994. There is no reason that MESC could not have discovered through the exercise of reasonable diligence that it did not receive all of the purchased assets. The Court finds that there are questions of fact as to whether MESC knew or should have known of its tort claims prior to plan confirmation. Accordingly, whether those claims are barred by res judicata and judicial estoppel are issues that are deferred until trial. Count I — Breach of Contract In Count I, MESC alleges that General Dynamics breached four provisions of the APA: §§ 2.1(d), 2.1(b), 2.1(e) and 3.5. The Court concludes that MESC’s Count I claims are barred by judicial estoppel as discussed above. As for three of the provisions, §§ 2.1(d), 2.1(b) and 3.5, the Court concludes that there are additional grounds for granting summary judgment. Section 2.1(d). MESC alleges that General Dynamics did not turn over all of the intellectual property purchased under the APA. But the evidence is undisputed that General Dynamics delivered each and every one of the items" } ]

[ { "docid": "15027571", "title": "", "text": "so. Id. at 1346-47. The court also made mention of two lesser, but still noteworthy, matters. First, several statutes establish that Congress has put the RTC into the regulatory agency category. Id. at 1347. Second, the RTC has been deemed a “regulatory agency” in other settings. Id. [citing Arkansas State Bank Commissioner v. RTC, 911 F.2d 161 (8th Cir.1990)]. The court concluded that the RTC was a “regulatory agency” and the exclusion precluded coverage. The Baker decision is consistent with the statutory framework devised by Congress when the Act was promulgated. 12 U.S.C. 1441a. The decision is also consistent with a reasonable interpretation of the regulatory exclusion. Although the RTC is not mentioned in the exclusion, it did not exist at the time the parties entered into the contract. It is inconceivable that the RTC would not have been mentioned in the exclusion had the parties known of its existence. In light of the foregoing, the Court finds that the RTC is a “regulatory agency.” The regulatory exclusion is therefore equally applicable to the RTC. The Court also finds that the exclusion is not ambiguous. PUBLIC POLICY. Another issue raised by these submissions is whether the regulatory exclusion is void as against public policy. This issue has been resolved in the negative. American Casualty Co. v. FDIC, 944 F.2d at 460. Given the finding of the Court that the RTC is a “regulatory agency,” and therefore falls within the exclusion, it is insignificant that American Casualty Co. v. FDIC deals with the FDIC but not the RTC. CONSIDERATION. The issue of consideration has been raised by the plaintiffs. This case is factually different than Slaughter v. American Casualty Co., No. B-C-92-23, a decision by Judge Howard. The Court finds that the consideration issue lacks merit. CONCLUSION. The material facts of this ease are undisputed. The regulatory exclusion is not ambiguous and applies to the RTC because it is a “regulatory agency.” This case is not easy because of the consequences flowing from this decision. Nevertheless, the exclusion precludes coverage. The motion for summary judgment is granted, and complaint is dismissed." } ]

[ { "docid": "23323074", "title": "", "text": "RTC’s “constructive nonrenewal” theory is a legal argument, CNA had no duty to notify Pacific that it might be able to reject the proposed policy and purchase discovery coverage. . The Eighth Circuit's McCuen decision is not contrary to Adams and Farmers. In McCuen, the court held only that the insured had the right to purchase discovery coverage after it had rejected the insurer’s offer to renew on different terms. McCuen, 946 F.2d at 1404 (applying Iowa law). Read together, Farmers and McCuen stand \"for the proposition that, under Iowa law, if an insurer offers to renew on substantially different terms, and the insured rejects those terms, the insurer is refusing to renew the policy. If on the other hand the insured is aware of the policy changes, and agrees to them, the policy has been renewed.” American Casualty Co. v. Continisio, 819 F.Supp. 385, 400 (D.N.J.1993), aff'd, 17 F.3d 62 (3d Cir.1994). . The RTC cites Allen as an example of a decision contrary to these cases. In Allen, however, the court found that the insureds had not agreed to the new terms in the successor policy. Allen, 710 F.Supp. at 1094. The case is therefore inap-posite. . The California legislature did not enact this provision until after the parties executed the policies at issue in this case. Nevertheless, the statute illustrates that no public policy is served by requiring insurers to send formal notices of \"nonrenewal” along with offers to \"renew” a policy on different terms. . Two individual directors argue that a material issue of fact exists on this issue because CNA did not provide them with notice of the new terms directly. This argument has no merit. The D & 0 policies provided that, \"[b]y acceptance of this Policy, the Directors and Officers ... agree that [Pacific] ... shall act on behalf of all Directors and Officers with respect to the giving and receiving of notice of claim, cancellation or any other notice required or permitted.” \"[I]n the absence of a contrary contractual provision, the duty to give notice [to the individual directors] does not rest" }, { "docid": "23323053", "title": "", "text": "the policies were being changed rather than renewed on the same terms, and that the successor policies would contain restrictive endorsements which would bar coverage for claims that would have been covered under the older policies.” The district court found this evidence untenable, a conclusion supported by Farmers, in which the Eighth Circuit rejected contentions that CNA had acted improperly: “It is true that American Casualty increased its premium and decreased its coverage for officers and directors when it discovered the state of the Bank’s loan portfolio. That strikes us, however, as a reasonable business decision rather than bad faith.” Farmers, 944 F.2d at 459. Even if the evidence did indicate an attempt by CNA to “hoodwink” Pacific into foregoing discovery coverage, estoppel would not be appropriate in this case because the Directors/Officers could not possibly have relied to their detriment on CNA’s conduct. The RTC’s arguments about reliance boil down to assertions that Pacific might have purchased discovery coverage and reported occurrences in the twelve-month discovery period. As explained above, however, notice of occurrences does not suffice in the discovery period. Because the RTC did not file claims against the Directors/Offieers until expiration of the discovery period, the policy would not in any event have covered those claims. Thus, the district court correctly concluded .that no coverage was available under the 1983-85 Policy because, even if the RTC proved at trial that CNA had not renewed the policy and had not provided notice of such nonrenewal, the only remedy would be to allow the RTC to purchase discovery coverage for the year following the alleged non-renewal. Because the Discovery Clause permitted coverage only for actual claims filed during the discovery period (and not for notices of occurrences that might ripen into claims), no remedy was available for CNA’s alleged policy breach. C. The 1985-86 Policy The district court held that the RTC could not assert a claim for nonrenewal of the 1985-86 Policy because Pacific had accepted a successor policy (the 1986-87 Policy) with full notice of its terms: “[T]he 1986-87 policy could not have constituted a non-renewal of" }, { "docid": "23323048", "title": "", "text": "the breach). The district court disagreed, concluding that “[a]llowing the RTC’s preferred solution would give the insureds much more than they bargained for.” Courts considering the propriety of the RTC’s requested remedy have split on the issue. The Baltimore Federal court used the approach taken by the district court: Assuming, only for the purposes of argument, that American Casualty failed to provide the required notice of nonrenewal, the RTC’s motion still must fail because it is not entitled to any meaningful remedy - To allow greater coverage [by extending the discovery period] would be to allow the insured, in effect, to write the new policy, adding or increasing coverage, eliminating conditions and exclusions.... If enforcement of the discovery period is the appropriate remedy, the RTC is left empty-handed because ... the bank gave no notice of a claim, nor was any claim filed against it, during that period. Baltimore Federal, 845 F.Supp. at 324-25 (internal quotation omitted). The court in Benafield v. Continental Casualty Co., No. LR-C-92-389, 1993 WL 723510 (E.DArk. Oct. 1, 1993), used the same reasoning: It is one thing to say that plaintiffs may exercise the discovery clause at this late date, and yet another to say that the discovery period should only now be in effect thus giving plaintiffs an additional seven or eight years of coverage. This construction of the policy was not bargained for by the parties, and this Court believes that the plain meaning of the clause is that the discovery period would be that twelve months following the expiration of the policy. Id., slip op. at 11. The Allen court, however, held that where the insurer fails to give notice of nonrenewal, the “defendants’ right to exercise the discovery option still exists due to a lack of notice of non-renewal” and concluded that the “right to exercise the discovery option runs ten days from the date of this judgment.” Allen, 710 F.Supp. at 1100, 1103. The Allen opinion is unclear, however, about whether actual claims had been filed against the insured within the discovery period or whether the court intended to extend" }, { "docid": "23323058", "title": "", "text": "insurance policy means the continuation of coverage on substantially the same terms. See, e.g., Kemmerer Eng’g Co. v. Continental Casualty Co., 253 Cal.App.2d 188, 61 Cal.Rptr. 94, 96 (1967). That proposition, however, is only half the story. A renewal policy “perpetuates the terms and conditions of the original policy unless the parties provide otherwise.” Sandgren v. Fire Ins. Exch., 64 Cal.App.3d 634, 134 Cal.Rptr. 590, 591 (1976) (emphasis added). “An insurer when renewing a policy may not change the terms of the policy, without first notifying the insured.” Fields v. Blue Shield, 163 Cal.App.3d 570, 209 Cal.Rptr. 781, 785 (1985) (emphasis added) (internal quotation omitted). See also Cal.Ins.Code § 678.1(f)(6) (notice of nonrenewal not required where “[t]he insurer has made a written offer to the insured ... to renew the policy under changed terms or conditions or at a changed premium rate”). The RTC does not dispute the district court’s finding that Pacific accepted the 1986-87 Policy with notice of its new terms. Therefore, under California law, the 1986-87 Policy constituted a renewal of the 1986-86 Policy. As a result, the district court correctly held that the RTC cannot now elect discovery coverage under the earlier policy. D. The 1986-87 and 1987-88 Policies The district court held that the Regulatory Exclusion in the 1986-87 and 1987-88 Policies barred coverage of the RTC claims. On appeal, the RTC contends only that the exclusion is inapplicable because the RTC is not a “regulatory agency.” We reject this strained argument. The Regulatory Exclusion provides that CNA will not be liable for claims against the Directors/Officers based upon or attributable to: [A]ny action or proceeding brought by or on behalf of the [FDIC], the Federal Savings & Loan Insurance Corporation, any other depository insurance organization, the Comptroller of the Currency, the Federal Home Loan Bank Board, or any other national or state regulatory agency ... including any type of legal action which such agencies have the legal right to bring as receiver, conservator, liquidator, or otherwise. Because every circuit that has considered the exclusion has found it valid and not violative of public policy," }, { "docid": "23323054", "title": "", "text": "does not suffice in the discovery period. Because the RTC did not file claims against the Directors/Offieers until expiration of the discovery period, the policy would not in any event have covered those claims. Thus, the district court correctly concluded .that no coverage was available under the 1983-85 Policy because, even if the RTC proved at trial that CNA had not renewed the policy and had not provided notice of such nonrenewal, the only remedy would be to allow the RTC to purchase discovery coverage for the year following the alleged non-renewal. Because the Discovery Clause permitted coverage only for actual claims filed during the discovery period (and not for notices of occurrences that might ripen into claims), no remedy was available for CNA’s alleged policy breach. C. The 1985-86 Policy The district court held that the RTC could not assert a claim for nonrenewal of the 1985-86 Policy because Pacific had accepted a successor policy (the 1986-87 Policy) with full notice of its terms: “[T]he 1986-87 policy could not have constituted a non-renewal of the previous policy. Defendants admit they had clear and conspicuous notice of all the terms of the new policy and they accepted the policy on those terms. As a matter of law, then, the insureds in this case cannot accept a policy with clear notice of its terms, yet years later assert a right to discovery coverage under the [prior] policy.” The RTC asserts that, under California law, acceptance of a successor policy does not transform a nonrenewal into a renewal or cure CNA’s failure to give notice of nonrenewal. Thus, the RTC maintains that CNA breached the Notice Clause and that it should now be able to purchase discovery coverage. We disagree. The circuit courts that have considered the issue have held that the knowing acceptance of a successor policy with different terms constitutes a renewal of the prior policy. Adams v. Greenwood, 10 F.3d 568 (8th Cir.1993), a recent Eighth Circuit decision, is directly on point: [The RTC’s] argument has been foreclosed by the district court’s determination ... that [the Bank] was adequately" }, { "docid": "23323034", "title": "", "text": "following the alleged nonrenewal. Because the RTC claims were not made until after the discovery period would have expired, any possible remedy would be ineffective. * For the 1985-86 Policy, even if CNA initially had not renewed the policy, the RTC was not entitled to purchase discovery coverage because Pacific had accepted a successor policy with full notice of its terms. * For the 1986-87 and 1987-88 Policies, the Regulatory Exclusion was enforceable and nullified coverage of RTC claims. The RTC filed a timely appeal which has been consolidated with CNA’s appeal of the Advancement Order. We conduct de novo review, e.g., O’Shea v. City of San Francisco, 966 F.2d 503, 505 (9th Cir.1992), and affirm the district court’s excellent Coverage Order in all regards. As a result, we also dismiss as moot CNA’s appeal of the Advancement Order and vacate the district court’s decision on that issue. II. The RTC asserts that each of the five D & 0 policies provide coverage for the claims asserted in RTC v. Baker. We address each in turn. A. The 1980-83 Policy The district court held that “[t]he CNA parties have established that, as a matter of law, any assumption of liability by Continental Casualty Company for the 1980-83 policy was rescinded by the so-called ‘Rescission Agreement.’ ” In so holding, the court relied in part on Continental Casualty Co. v. Allen, 710 F.Supp. 1088, 1102 (N.D.Tex.1989), which found an identical rescission agreement to terminate CNA’s liability for previously-assumed policies. The RTC contends that Allen is inapposite because, in this case, a “Claims Service Agreement” between CNA and WMBIC, executed contemporaneously with the Rescission Agreement, illustrates that CNA intended to be liable on the 1980-83 Policy even after executing the Rescission Agreement. The RTC’s argument is as follows: The Rescission and Claims Service Agreements refer to “Claims in Existence.” The Claims Service Agreement contains an exhibit listing all such claims but not including the RTC claims. Some evidence indicates that the Claims Service Agreement represents “the extent of the universe of claims” covered by the Rescission Agreement. That evidence creates a material" }, { "docid": "15337363", "title": "", "text": "Co. v. Barham, 995 F.2d 600, 604-05 (5th Cir.1993) (holding that insurer’s receipt of agreement between bank and government agency regarding implementation of policies designed to prevent future violations of law did not constitute adequate notice under policy requiring disclosure of very specific information); Federal Deposit Ins. Co. v. St. Paul Fire & Marine Ins. Co., 993 F.2d 155, 159 (8th Cir.1993) (holding that claims information found in renewal application did not constitute adequate notice); American Cas. Co. of Reading, Pennsylvania v. Federal Deposit Ins. Co., 944 F.2d at 460 (holding that claims information found in renewal application did not constitute adequate notice). The Court must reject American Casualty’s contention that the letters in this case did not provide enough specific information to constitute adequate notice. There is no requirement of such specificity in the language of section 6(a). Indeed, the provision seems to require very little particularity and because under Missouri law the ambiguous provision must be construed against the insurer, the Court finds that the notice given by the insureds in this case was adequate and timely and satisfied the requirements of the 1985 policy. II. Coverage Having determined that notice was adequate and timely in this case, the Court must address the amount of coverage available to the insureds under the 1985 policy. On its face, the 1985 policy provides a $10 million aggregate limit of liability each policy year for all directors and officers. As discussed above, the prior 1982 policy contained more coverage: $10 million aggregate limit of liability each policy year for each director and officer. RTC contends that such a significant change in policy coverage necessitated notice and that at the time Community Federal sought to renew the 1982 policy, American Casualty did not give Community Federal any notice of its intent to reduce the coverage offered by the 1982 policy. RTC further argues that American Casualty’s failure to give notice about changes effected a renewal of the 1982 policy with identical terms and coverage. American Casualty admits that it did not give notice of an intent to cancel or not to renew" }, { "docid": "23323056", "title": "", "text": "notified of the existence of the [Regulatory Exclusion] before entering into the [successor policy] contract.... [A]n insured who agrees to accept an altered ‘renewal’ policy forgoes his claim for extended discovery rights under the old policy. In this ease, [the Bank]’s acceptance of a series of policies after notice of the regulatory exclusion in 1982 and afterwards, is inconsistent with its assertion of constructive non-renewal. The RTC, as successor to [the Bank], has no right to any extended discovery period under the [earlier] policy. Id. at 572 (applying Minnesota law). See also American Casualty Co. v. Continisio, 17 F.3d 62 (3d Cir.1994) (“Even in a state where ‘renewal’ is strictly defined as ‘continuation of coverage on the same, or nearly the same, terms as the policy being renewed,’ acceptance of new terms constitutes a renewal.” (applying New Jersey law); Farmers, 944 F.2d at 460 (“[A]greement to new terms creates a renewal. [The bank]’s agreement to the [successor] policy ... prevents the Board from securing after-the-fact coverage under the [earlier] policy”) (applying Iowa law). Cf. Mundy v. Lumberman’s Mutual Casualty Co., 783 F.2d 21, 22-23 (1st Cir.1986) (same result under Massachusetts law in context other than D & 0 insurance); GEICO v. United States, 400 F.2d 172, 174-75 (10th Cir.1968) (same result under federal law in context other than D & O insurance). The district courts have taken a similar position. “Where ... it can be shown that the parties agreed to a renewal on changed terms, it is not for this Court, in hindsight, to reorganize their affairs.” Baltimore Federal, 845 F.Supp. at 324 (applying Maryland law). See Blanchard, 821 F.Supp. at 662-663 (applying Oklahoma law); American Casualty Co. v. FDIC, No. 91-CV-692, slip op. at 8 (W.D.Mich. Jan. 8,1993) (White Cloud) (“the critical question is whether the changes in the [successor policy] were called to [the bank]’s attention at the time of renewal”) (applying Michigan law). Despite all this authority to the contrary, the RTC claims that California law mandates a different result. The RTC correctly notes that in California, as in most other jurisdictions, the renewal of an" }, { "docid": "23323071", "title": "", "text": "[I]t would be best to pay more attention to the evidence and precedents as they exist rather than as [the RTC and CNA] wish they were. American Casualty Co. v. RTC, 845 F.Supp. 318, 319 (D.Md.1993) (Baltimore Federal) (footnote omitted). After wading through twelve briefs in this case, we couldn't agree more. . The parties agreed to apply California law to the agreements. . Like everything else on appeal, the RTC and CNA disagree about how to refer to cases with identical lead parties. For this opinion, we adopt CNA’s style of referring to such cases by the name of the financial institution on whose behalf the RTC or FDIC was asserting claims. . On appeal, the Eighth Circuit overruled Christensen in American Casualty Co. v. FDIC, 944 F.2d 455 (8th Cir.1991) (Farmers). However, because the Farmers court concluded that American Casualty had in fact renewed the policy at issue, it never considered the propriety of the district court’s proposed remedy. . The RTC cites Casper to support its arguments. In that case, the Tenth Circuit did hold that, \"if notice of nonrenewal is required, the policy runs either to the end of the period defined in the agreement or until the notice of nonrenewal becomes effective, whichever is later.” Casper, 999 F.2d at 482. Casper is inapposite, however, because it did not involve the right to buy discovery coverage retroactively. Rather, it merely held that, where the insurer sent notice of nonrenewal that set a specific date for termination of a policy, that date controlled over the earlier date of termination listed in the policy itself. .Also unhelpful are the cases cited by the RTC that purportedly order specific performance of option contracts by extending the period in which the option is to run. In Bertero v. National General Corp., 254 Cal.App.2d 126, 62 Cal.Rptr. 714 (1967), the court gave the defendant the choice of paying money damages or allowing the plaintiff to exercise stock options despite expiration of the option time period. This remedy was merely an expeditious way to give the plaintiff “that which he had bargained" }, { "docid": "23323052", "title": "", "text": "by disguising its nonrenewal of the policy. We disagree. California courts apply equitable estoppel to prevent injustice where one party has, through action or inaction, caused another to act to his detriment. The party invok ing the doctrine must prove four elements: “(1) that the party to be estopped was apprised of the facts; (2) that he intended his conduct to be acted on, or that he acted in such a way that the party asserting estoppel reasonably could believe that he intended his conduct to be acted upon; (3) that the party asserting estoppel was ignorant of the actual facts; and (4) that the party asserting estop-pel relied upon the conduct to his injury.” Adams v. Johns-Manville Corp., 876 F.2d 702, 707 (9th Cir.1989) (applying California law). See, e.g., Hair v. State, 2 Cal.App.4th 321, 2 Cal.Rptr.2d 871, 875 (1991). ‘\"Where any one of the elements of equitable estoppel is absent, the claim must fail.” Hair, 2 Cal.Rptr.2d at 875. The RTC presented some evidence allegedly illustrating CNA’s intent to “disguise the fact that the policies were being changed rather than renewed on the same terms, and that the successor policies would contain restrictive endorsements which would bar coverage for claims that would have been covered under the older policies.” The district court found this evidence untenable, a conclusion supported by Farmers, in which the Eighth Circuit rejected contentions that CNA had acted improperly: “It is true that American Casualty increased its premium and decreased its coverage for officers and directors when it discovered the state of the Bank’s loan portfolio. That strikes us, however, as a reasonable business decision rather than bad faith.” Farmers, 944 F.2d at 459. Even if the evidence did indicate an attempt by CNA to “hoodwink” Pacific into foregoing discovery coverage, estoppel would not be appropriate in this case because the Directors/Officers could not possibly have relied to their detriment on CNA’s conduct. The RTC’s arguments about reliance boil down to assertions that Pacific might have purchased discovery coverage and reported occurrences in the twelve-month discovery period. As explained above, however, notice of occurrences" }, { "docid": "23323057", "title": "", "text": "v. Lumberman’s Mutual Casualty Co., 783 F.2d 21, 22-23 (1st Cir.1986) (same result under Massachusetts law in context other than D & 0 insurance); GEICO v. United States, 400 F.2d 172, 174-75 (10th Cir.1968) (same result under federal law in context other than D & O insurance). The district courts have taken a similar position. “Where ... it can be shown that the parties agreed to a renewal on changed terms, it is not for this Court, in hindsight, to reorganize their affairs.” Baltimore Federal, 845 F.Supp. at 324 (applying Maryland law). See Blanchard, 821 F.Supp. at 662-663 (applying Oklahoma law); American Casualty Co. v. FDIC, No. 91-CV-692, slip op. at 8 (W.D.Mich. Jan. 8,1993) (White Cloud) (“the critical question is whether the changes in the [successor policy] were called to [the bank]’s attention at the time of renewal”) (applying Michigan law). Despite all this authority to the contrary, the RTC claims that California law mandates a different result. The RTC correctly notes that in California, as in most other jurisdictions, the renewal of an insurance policy means the continuation of coverage on substantially the same terms. See, e.g., Kemmerer Eng’g Co. v. Continental Casualty Co., 253 Cal.App.2d 188, 61 Cal.Rptr. 94, 96 (1967). That proposition, however, is only half the story. A renewal policy “perpetuates the terms and conditions of the original policy unless the parties provide otherwise.” Sandgren v. Fire Ins. Exch., 64 Cal.App.3d 634, 134 Cal.Rptr. 590, 591 (1976) (emphasis added). “An insurer when renewing a policy may not change the terms of the policy, without first notifying the insured.” Fields v. Blue Shield, 163 Cal.App.3d 570, 209 Cal.Rptr. 781, 785 (1985) (emphasis added) (internal quotation omitted). See also Cal.Ins.Code § 678.1(f)(6) (notice of nonrenewal not required where “[t]he insurer has made a written offer to the insured ... to renew the policy under changed terms or conditions or at a changed premium rate”). The RTC does not dispute the district court’s finding that Pacific accepted the 1986-87 Policy with notice of its new terms. Therefore, under California law, the 1986-87 Policy constituted a renewal of the" }, { "docid": "23323073", "title": "", "text": "for” without penalizing the defendant in case performance of the option would work undue hardship. Id. at 727. Similarly, the court in Warner Bros. Pictures v. Brodel, 31 Cal.2d 766, 192 P.2d 949, cert. denied, 335 U.S. 844, 69 S.Ct. 67, 93 L.Ed. 394 (1948), expressly declined to consider “the type of relief to which plaintiff may be entitled.\" Id. at 778, 192 P.2d 949. . The RTC also argues that California law imposed on CNA an obligation to inform Pacific that the offer of a policy with different terms might constitute nonrenewal and therefore permit Pacific to elect discovery coverage. This contention is erroneous. California law does require an insurer to disclose facts upon which a claim may be based. See, e.g., Davis v. Blue Cross, 25 Cal.3d 418, 158 Cal.Rptr. 828, 834, 600 P.2d 1060, 1066 (1979). California law does not, however, require disclosure of a legal theory upon which coverage may exist. See, e.g., Love v. Fire Ins. Exch., 221 Cal.App.3d 1136, 271 Cal.Rptr. 246, 250-54 & nn. 5-8 (1990). Because the RTC’s “constructive nonrenewal” theory is a legal argument, CNA had no duty to notify Pacific that it might be able to reject the proposed policy and purchase discovery coverage. . The Eighth Circuit's McCuen decision is not contrary to Adams and Farmers. In McCuen, the court held only that the insured had the right to purchase discovery coverage after it had rejected the insurer’s offer to renew on different terms. McCuen, 946 F.2d at 1404 (applying Iowa law). Read together, Farmers and McCuen stand \"for the proposition that, under Iowa law, if an insurer offers to renew on substantially different terms, and the insured rejects those terms, the insurer is refusing to renew the policy. If on the other hand the insured is aware of the policy changes, and agrees to them, the policy has been renewed.” American Casualty Co. v. Continisio, 819 F.Supp. 385, 400 (D.N.J.1993), aff'd, 17 F.3d 62 (3d Cir.1994). . The RTC cites Allen as an example of a decision contrary to these cases. In Allen, however, the court found that" }, { "docid": "5802878", "title": "", "text": "Since these motions have been pending, a new case was decided which American Casualty brought to the Court’s attention by its filing dated January 7, 1991, entitled “Notice of New Decision” to which was attached Gary v. American Casualty Company of Reading, PA., 753 F.Supp. 1547 (W.D.Okla.1990). In Gary, the FDIC intervened and filed a cross-motion for summary judgment. The parties disputed American Casualty’s liability under a Regulatory Exclusion supposedly identical to the one at issue here. In a supplemental memorandum filed January 17, 1991, the RTC/FDIC distinguishes Gary because the language of the policy is not identical, different public policy arguments were advanced, and because the RTC/FDIC was not involved in Gary. In the RTC/FDIC’s view, the summary judgment motions here were brought under a unique procedural circumstance since the parties agreed to conduct no discovery during the pendency of the motions. The court in Gary rejected FDIC’s “secondary suit” argument finding the FDIC’s interpretation to be “strained and unreasonable”. Id. at 1550. The Court held that it was clear that the insured’s intent was to exclude coverage for any loss resulting from any action brought by or on behalf of the FDIC in any capacity against a bank director or officer. Id. at 1550-1551. (3) Public Policy The RTC/FDIC, and especially the Eg-dahl defendants, argue that the Regulatory Exclusion cannot be enforced because it violates a public policy which mandates that the federal government minimize losses from a national savings and loan crisis. The Egdahl defendants support their public policy argument by citing to FSLIC v. Oldenburg, 671 F.Supp. 720 (D.Utah 1987). In Oldenburg, Federal Insurance Company (“Federal”) filed a motion to dismiss FSLIC’s complaint. Federal argued that a regulatory exclusion barred any claim made by FSLIC. FSLIC, as the receiver of State Savings’ assets, transferred the insurance policy at issue to FSLIC in its corporate capacity. The court denied Federal’s motion to dismiss on the grounds that there is a strong public policy that FSLIC, as receiver, has all the rights and claims that State Savings would have had. The Egdahl defendants also cite to Branning v." }, { "docid": "15337367", "title": "", "text": "as the 1982 policy and that in the corner of the 1985 policy declaration, in a box containing the words “renewal of’ and “replacement of,” the word “SAME” was typed. Under American Casualty’s reading of the 1982 policy, the “nonrenewal” neces sary to trigger section 7(b) would have to be a cancellation in coverage. RTC claims that “nonrenewal” constitutes something less than cancellation, such as the failure to renew a policy with the same terms and conditions as the previous policy. The 1982 policy contains no definition of “nonrenewal” or “cancellation.” In addition, in sections 7(b) and 2(b), “cancellation” and “nonrenewal” are contrasted; however, whether the contrast is a result of a difference in meanings that is substantive or temporal is not clear. Therefore, the contract is ambiguous and should, under Missouri law, be construed in favor of the insureds’ understanding of nonrenewal. Peters, 853 S.W.2d at 302. Furthermore, under Missouri law, it is true that a renewal of an insurance policy constitutes a separate and distinct contract for the period of time covered by the renewal. DeWitt v. American Family Mut. Ins. Co., 667 S.W.2d 700, 705 (Mo. banc 1984); Rice v. Provident Life & Accident Ins. Co., 102 S.W.2d 147, 151 (Mo.Ct.App.1937). However, a renewal is also considered a contract with the same terms and conditions as those contained in the policy which is renewed. Hester v. American Family Mut. Ins. Co., 733 S.W.2d 1, 2 (Mo.Ct.App.1987); Rice, 102 S.W.2d at 151. As the Eighth Circuit explained when applying similar Iowa law in McCuen v. American Casualty Company, a change in policy terms constitutes a failure to renew a particular policy. 946 F.2d 1401, 1404-05 (8th Cir.1991). The modified policy is actually an offer of a new policy and not a renewal. Id. The McCuen court rejected the insurer’s contention that a failure to renew equals only a failure to provide coverage. Id. The cases relied upon by American Casualty for the rejection of the constructive nonre-newal concept are distinguishable. In those cases, the courts found that adequate prior notice had been given to the insureds by the" }, { "docid": "23323070", "title": "", "text": "462, 468 (11th Cir.1992); Thibeault v. Square D. Co., 960 F.2d 239, 244-48 (1st Cir.1992). See also Scott & Fetter Co. v. Dile, 643 F.2d 670, 673-75 (9th Cir.1981) (abuse of discretion for district court not to exclude testimony omitted from interrogatory responses). . We commend the district court for its thorough consideration of the barrage of arguments leveled by the parties. Although CNA and the RTC/ FDIC are well acquainted with each other (by our count they have litigated at least twenty different cases involving similar policies), neither presented a lucid case below or on appeal, preferring instead to make every conceivable (and occasionally inconceivable) argument. Unfortunately, these \"shotgun\" argument tactics are not unique to this case: Because the RTC and American Casualty have litigated similar — but not identical — issues in many other cases, the matter was grossly overbriefed. ... [S]ome of the arguments presented appear to have been made because they are found on some checklist of all possible arguments, rather than through informed professional judgment regarding this particular case. ... [I]t would be best to pay more attention to the evidence and precedents as they exist rather than as [the RTC and CNA] wish they were. American Casualty Co. v. RTC, 845 F.Supp. 318, 319 (D.Md.1993) (Baltimore Federal) (footnote omitted). After wading through twelve briefs in this case, we couldn't agree more. . The parties agreed to apply California law to the agreements. . Like everything else on appeal, the RTC and CNA disagree about how to refer to cases with identical lead parties. For this opinion, we adopt CNA’s style of referring to such cases by the name of the financial institution on whose behalf the RTC or FDIC was asserting claims. . On appeal, the Eighth Circuit overruled Christensen in American Casualty Co. v. FDIC, 944 F.2d 455 (8th Cir.1991) (Farmers). However, because the Farmers court concluded that American Casualty had in fact renewed the policy at issue, it never considered the propriety of the district court’s proposed remedy. . The RTC cites Casper to support its arguments. In that case, the Tenth" }, { "docid": "15670745", "title": "", "text": "not an \"additional insured” because the liability to Lozano was not \"arising out of [Air Equipment's] ongoing operations performed for [Swift]”). But Mid-Continent has presented both its arguments on the \"insured contract” issue on appeal. . Mid-Continent has not argued that the \"additional insured” provision is directly invalidated by the TOAIA. If raised, this argument would lack merit. In Getty Oil Co. v. Ins. Co. of North America, 845 S.W.2d 794 (Tex.1992), the Texas Supreme Court held that the TOAIA did not reach an \"additional insured” provision even if the underlying indemnity agreement was void under the TOAIA. See id. at 803-04 (\"additional insured” provision is a separate obligation that does not “directly support” an indemnity agreement, and therefore is not subject to the TOAIA); id. at 808 n. 2 (Gonzales, J., concurring and dissenting) (\"[T]his court has determined that an additional insured provision is not covered by the Anti-Indemnity statute.”). We followed Getty in Certain Underwriters at Lloyd’s London v. Oryx Energy Co., 142 F.3d 255 (5th Cir.1998), holding that the TOAIA did not reach an additional insured provision even if the underlying indemnity contract, which expressly required that Oryx be named as an \" 'additional insured ... to the extent of the indemnity,’ ” id. at 258, was invalid under the TO-AIA. See id. at 259-60. Under Getty and Oryx, the \"additional insured” provision of the Policy would not be invalidated by the TOAIA even if we found that the MSA was invalid. As in Oryx, the MSA requires that Air Equipment \"name Company [Swift] an additional insured, for liabilities and indemnities assumed by Contractor.” Mid-Continent apparently argued in the district court, based on the \"for liabilities and indemnities assumed by Contractor” language, that the \"additional insured” provision in the Policy does not apply if the MSA’s indemnity provision is invalid under the TOAIA. Oryx, rejecting a similar claim based on nearly identical language in the indemnity. contract, appears to preclude this argument. See Oryx, 142 F.3d at 258 (rejecting claimed limitation on \"additional insured” coverage under policy, based on indemnity contract's requirement that Oryx be named an" }, { "docid": "15337369", "title": "", "text": "insurers of changes to the renewal policies. Adams v. Greenwood, 10 F.3d 568, 572 (8th Cir.1993) (applying Minnesota law); St. Paul Fire & Marine Ins. Co. v. Federal Deposit Ins. Co., 968 F.2d 695, 700 (8th Cir.1992) (applying Minnesota law). In addition, American Casualty has not produced sufficient evidence to create a question of fact regarding whether notice was given in compliance with section 7(b) or whether the parties agreed in this case to the new terms specifically with notice. RTC, on the other hand, has produced evidence establishing a lack of notice on the part of American Casualty and a lack of agreement between the parties. (Pla.’s App. Tab 12 Chesler Dep. 34, 42-43, 49, 54-56, 58-59, 63-65; App. Tab. 13, Dahlstrom Dep. 44, 45, 48, 65; App. Tab. 14 Pollihan Dep. 23-24, 63-64, 67, 82-83; App. Tab. 15 Smith Dep. 8-14; App. Tabs 1, 16.) Therefore, in this case, American Casualty’s tendering of a policy with a significant change in coverage constituted a constructive nonrenewal. The nonrenewal triggered sections 7(b) and 2(b) of the 1982 policy. Therefore, the Court finds that American Casualty should have given Community Federal written notice thirty days in advance of the nonrenewal and that Community Federal is entitled, as it would have been, to extended coverage under section 2(b). RTC also seeks a declaration that the litigation filed by RTC against former officers and directors of Community Federal relates back to the April 11, 1986 notice of claims. RTC has introduced evidence supporting its contention. (Halsne Aff. ¶ 14; Pla.’s App. Tab 4, Bertuca Dep. 41-49; App. Tab 9, Hayden Dep. 27-34, 394:0, 55-57; App. Tab 10, Hickel Dep. 17-30; App. Tabs 27, 28, 30, 31, 32-35; SuppApp., Hayden Dep. 48-54.) American Casualty has not responded with any evidence to rebut RTC’s contention. American Casualty cannot simply rest on its pleadings, and this Court is “ ‘not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party’s claim.’" }, { "docid": "23323044", "title": "", "text": "nature of notice that can be given during the policy period under [the Notice of Claims Clause], we cannot conclude that the term “policy period” — as used in both [the Notice of Claims Clause] and [the Coverage Clause] — may reasonably be interpreted to encompass the “discovery period.” Oklahoma Federal, 958 F.2d at 327 (applying Oklahoma law). See American Casualty Co. v. FDIC, 999 F.2d 480, 482 (10th Cir.1993) (Casper) (applying Wyoming law); Baltimore Federal, 845 F.Supp. at 325-26 (applying Maryland law) (“The plain language of [the Discovery Clause] — ‘any claim or claims which shall be made’ — precludes coverage based on mere notice of potential claims. This is confirmed by a careful reading of the unambiguous language in [the Notice of Claims Clause], requiring that notice of potential claims be given ‘during the policy period,’ and [the Coverage Clause], distinguishing between ‘the policy period’ and ‘the discovery period.’”). Although McCuen reached the opposite conclusion, that decision is not persuasive because the court apparently failed to consider the distinction between the policy and discovery periods. See Oklahoma Federal, 958 F.2d at 328 (“The analysis of the term ‘claims’ in McCuen ignores the issue of whether [the Notice of Claims] clause applies to notice of occurrences given dining the discovery period.”). The RTC’s argument that the very fact that courts disagree illustrates an ambiguity is unpersuasive: “The mere fact that judges of diverse jurisdictions disagree does not establish ambiguity under the particular principles which govern the interpretation of insurance contracts in California.” ACL Technologies, Inc. v. Northbrook Property & Casualty Ins. Co., 17 Cal.App. 4th 1773, 22 Cal.Rptr.2d 206, 215 n. 39 (1993). Accordingly, we use California’s rule of following clear and unambiguous contract language and find for CNA on this issue. b. Extrinsic Evidence The RTC asserts that the evidence illustrates that MGIC and CNA interpreted the Discovery Clause to encompass notice of occurrences. Specifically, the RTC notes that a 1974 memorandum from MGIC to a cus tomer stated that discovery coverage under MGIC policies included notice of occurrences. The RTC also points out that several recent CNA" }, { "docid": "23323055", "title": "", "text": "the previous policy. Defendants admit they had clear and conspicuous notice of all the terms of the new policy and they accepted the policy on those terms. As a matter of law, then, the insureds in this case cannot accept a policy with clear notice of its terms, yet years later assert a right to discovery coverage under the [prior] policy.” The RTC asserts that, under California law, acceptance of a successor policy does not transform a nonrenewal into a renewal or cure CNA’s failure to give notice of nonrenewal. Thus, the RTC maintains that CNA breached the Notice Clause and that it should now be able to purchase discovery coverage. We disagree. The circuit courts that have considered the issue have held that the knowing acceptance of a successor policy with different terms constitutes a renewal of the prior policy. Adams v. Greenwood, 10 F.3d 568 (8th Cir.1993), a recent Eighth Circuit decision, is directly on point: [The RTC’s] argument has been foreclosed by the district court’s determination ... that [the Bank] was adequately notified of the existence of the [Regulatory Exclusion] before entering into the [successor policy] contract.... [A]n insured who agrees to accept an altered ‘renewal’ policy forgoes his claim for extended discovery rights under the old policy. In this ease, [the Bank]’s acceptance of a series of policies after notice of the regulatory exclusion in 1982 and afterwards, is inconsistent with its assertion of constructive non-renewal. The RTC, as successor to [the Bank], has no right to any extended discovery period under the [earlier] policy. Id. at 572 (applying Minnesota law). See also American Casualty Co. v. Continisio, 17 F.3d 62 (3d Cir.1994) (“Even in a state where ‘renewal’ is strictly defined as ‘continuation of coverage on the same, or nearly the same, terms as the policy being renewed,’ acceptance of new terms constitutes a renewal.” (applying New Jersey law); Farmers, 944 F.2d at 460 (“[A]greement to new terms creates a renewal. [The bank]’s agreement to the [successor] policy ... prevents the Board from securing after-the-fact coverage under the [earlier] policy”) (applying Iowa law). Cf. Mundy" }, { "docid": "15337368", "title": "", "text": "the renewal. DeWitt v. American Family Mut. Ins. Co., 667 S.W.2d 700, 705 (Mo. banc 1984); Rice v. Provident Life & Accident Ins. Co., 102 S.W.2d 147, 151 (Mo.Ct.App.1937). However, a renewal is also considered a contract with the same terms and conditions as those contained in the policy which is renewed. Hester v. American Family Mut. Ins. Co., 733 S.W.2d 1, 2 (Mo.Ct.App.1987); Rice, 102 S.W.2d at 151. As the Eighth Circuit explained when applying similar Iowa law in McCuen v. American Casualty Company, a change in policy terms constitutes a failure to renew a particular policy. 946 F.2d 1401, 1404-05 (8th Cir.1991). The modified policy is actually an offer of a new policy and not a renewal. Id. The McCuen court rejected the insurer’s contention that a failure to renew equals only a failure to provide coverage. Id. The cases relied upon by American Casualty for the rejection of the constructive nonre-newal concept are distinguishable. In those cases, the courts found that adequate prior notice had been given to the insureds by the insurers of changes to the renewal policies. Adams v. Greenwood, 10 F.3d 568, 572 (8th Cir.1993) (applying Minnesota law); St. Paul Fire & Marine Ins. Co. v. Federal Deposit Ins. Co., 968 F.2d 695, 700 (8th Cir.1992) (applying Minnesota law). In addition, American Casualty has not produced sufficient evidence to create a question of fact regarding whether notice was given in compliance with section 7(b) or whether the parties agreed in this case to the new terms specifically with notice. RTC, on the other hand, has produced evidence establishing a lack of notice on the part of American Casualty and a lack of agreement between the parties. (Pla.’s App. Tab 12 Chesler Dep. 34, 42-43, 49, 54-56, 58-59, 63-65; App. Tab. 13, Dahlstrom Dep. 44, 45, 48, 65; App. Tab. 14 Pollihan Dep. 23-24, 63-64, 67, 82-83; App. Tab. 15 Smith Dep. 8-14; App. Tabs 1, 16.) Therefore, in this case, American Casualty’s tendering of a policy with a significant change in coverage constituted a constructive nonrenewal. The nonrenewal triggered sections 7(b) and 2(b) of" } ]

[ { "docid": "3739786", "title": "", "text": "(3) violation of the right to equal protection under the Fourteenth Amendment; (4) violation of freedom of religion under the First Amendment; (5) violation of Colo.Rev.Stat. § 22-1-120; and (6) violation of the Establishment Clause of the First Amendment. Corder sought nominal damages and injunctive relief. After the School District filed a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(b)(1) and (c) and the parties conducted limited discovery and then filed cross-motions for summary judgment, the district court granted the School District’s motion for judgment on the pleadings. II Standard of Review We review a dismissal granted under Fed.R.Civ.P. 12(c) “under the standard of review applicable to a Rule 12(b)(6) motion to dismiss.” Nelson v. State Farm Mut. Auto. Ins. Co., 419 F.3d 1117, 1119 (10th Cir.2005) (internal quotations omitted). “This court reviews de novo the district court’s grant of a motion to dismiss pursuant to Rule 12(b)(6), applying the same legal standard applicable in the district court.” Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir.2007). “In reviewing a motion to dismiss, this court must look for plausibility in the complaint.” Id. (internal quotations omitted). “Under this standard, a complaint must include ‘enough facts to state a claim to relief that is plausible on its face.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). “The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008). Mootness In addition to a request for nominal damages, Corder’s complaint seeks a declaration that the School District violated Corder’s First Amendment and Equal Protection rights, and a declaration that the School District’s unwritten policy of reviewing student graduation speeches is unconstitutional. Corder’s complaint also seeks a permanent injunction against enforcement of that unwritten policy. The School District argued before the district court that Corder’s claims for declaratory and injunctive relief are moot, and the district court agreed. Although we have jurisdiction over appeals from all final decisions of federal district" } ]

[ { "docid": "18307571", "title": "", "text": "on June 29, 2006. On July 10, 2006, the Guidrys filed a Motion to Reconsider, which was denied on January 3, 2007. The Guidrys now appeal. II. STANDARD OF REVIEW We review a Rule 12(c) motion for judgment on the pleadings de novo. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007), petition for cert. filed, (U.S. Nov. 26, 2007) (No. 07-713). The standard for deciding a Rule 12(c) motion is the same as a Rule 12(b)(6) motion to dismiss. Id. The court “accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Id. (internal quotations omitted). The plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, — U.S. —, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 1965 (citation and footnote omitted). III. DISCUSSION Appellants allege that the district court erred in dismissing their claims because the language “actual charges” means the “billed amount” or, at the very least, is ambiguous. APL contends, and the district court agreed, that “actual charges” unambiguously means the amount that the insured ultimately owes (i.e., the discounted bill). As this is a diversity action regarding the interpretation of insurance policies issued in Louisiana, Louisiana’s substantive law controls. Am. Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir.2003). Under Louisiana law, an insurance policy “is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code.” Cadwallader v. Allstate Ins. Co., 848 So.2d 577, 580 (La.2003). According to the Louisiana Givil Code, “[i]nterpretation of a contract is the determination of the common intent of the parties,” La. Civ.Code Ann. art. 2045, and an insurance contract “shall be construed according to the entirety of its terms and conditions.” La.Rev.Stat." }, { "docid": "14871665", "title": "", "text": "filed a motion for reconsideration under Rule 59(e), Fed.R.Civ.P., which the district court denied. See Kerber v. Qwest Group Life Ins. Plan, 727 F.Supp.2d 1076 (D.Colo.2010). Plaintiffs timely appealed. See 13 ApltApp. 2793. Discussion Plaintiffs’ appeal raises seven issues: whether the district court erred (1) in holding that Qwest unambiguously reserved the right to amend the Plan, notwithstanding the Minimum Benefits Provision (dismissal of Claim 1 of AC); (2) in dismissing Plaintiffs’ ERISA equitable estoppel claim, (dismissal of Claim 1 of AC); (3) in determining that the 2005 Resolution or subsequent ratification effectively amended the Plan (summary judgment on Claim 3 of SAC); (4) in determining that Amendment 2006-1 effectively amended the Plan (summary judgment on Claim 4 of the SAC); (5) in determining that the Prior Loss Proviso was not violated (summary judgment on Claim 5 of SAC); (6) in determining that the 2006 Resolution effectively amended the Plan (summary judgment on Claim 6 of SAC); and (7) in determining that Qwest had not breached its fiduciary duties by materially misrepresenting Qwest’s ability to amend the Plan (summary judgment on Claim 2 of SAC). Aplt. Br. 3-4. We address each issue in turn, after discussing the standards of review. We review de novo a district court's dismissal of a complaint under Rule 12(b)(6), Fed. R. Civ. P, applying the same legal standard as the district court. Jordan-Arapahoe, LLP v. Bd. of Cnty. Comm’rs, 633 F.3d 1022, 1025 (10th Cir. 2011) (citations omitted). We must accept as true “all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009). In order to survive a motion to dismiss, the complaint must allege sufficient facts to make the claim plausible on its face. Jordam-Arapahoe, 633 F.3d at 1025 (citation omitted). In addition to the allegations contained in the complaint, we may consider attached exhibits and documents incorporated into the complaint, so long as the parties do not dispute the documents’ authenticity. Smith, 561 F.3d at 1098. In this case, both parties stipulated to the" }, { "docid": "19002102", "title": "", "text": "Plaintiff contends that this offer did not comply with the statute because it did not cover passengers or pedestrians. Plaintiff elected to purchase limited basic PIP coverage for a reduced premium. Plaintiff was injured in an automobile accident in October 1999 while driving his insured vehicle, and Defendant paid him the limited PIP benefits provided under his policy. Plaintiff subsequently filed the instant lawsuit seeking reformation of his insurance policy as well as damages for breach of contract and bad faith based on Defendant’s alleged failure to extend to Plaintiff a statutorily compliant offer of enhanced PIP coverage and subsequent failure to provide Plaintiff with enhanced PIP coverage for his accident-related injuries and other losses. The district court granted Defendant’s motion for summary judgment on the ground that Plaintiff lacked standing. The court concluded that Plaintiff would not be personally affected by reformation of his policy because reformation would only extend enhanced PIP coverage to passengers and pedestrians, not to Plaintiff as the named insured. The court then held that because all of Plaintiffs claims for relief depended upon his reformation claim, the action should be dismissed in its entirety. We review the district court’s grant of summary judgment de novo, applying the same standard as the district court. Allstate Ins. Co. v. Murray Motor Imports Co., 357 F.3d 1135, 1138 (10th Cir.2004). “Summary judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Id. (quoting Fed.R.Civ.P. 56(c)). Colorado law governs our analysis of Plaintiffs underlying claims. Hill v. Allstate Ins. Co., 479 F.3d 735, 739 (10th Cir.2007). In Brennan, 961 P.2d at 554, the Colorado Court of Appeals held that “when ... an insurer fails to offer the insured optional coverage that satisfies the [statute], additional coverage in conformity with the offer mandated by statute will be incorporated into the policy.” According to Plaintiffs interpretation of this holding, reformation requires incorporation of" }, { "docid": "14871666", "title": "", "text": "amend the Plan (summary judgment on Claim 2 of SAC). Aplt. Br. 3-4. We address each issue in turn, after discussing the standards of review. We review de novo a district court's dismissal of a complaint under Rule 12(b)(6), Fed. R. Civ. P, applying the same legal standard as the district court. Jordan-Arapahoe, LLP v. Bd. of Cnty. Comm’rs, 633 F.3d 1022, 1025 (10th Cir. 2011) (citations omitted). We must accept as true “all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009). In order to survive a motion to dismiss, the complaint must allege sufficient facts to make the claim plausible on its face. Jordam-Arapahoe, 633 F.3d at 1025 (citation omitted). In addition to the allegations contained in the complaint, we may consider attached exhibits and documents incorporated into the complaint, so long as the parties do not dispute the documents’ authenticity. Smith, 561 F.3d at 1098. In this case, both parties stipulated to the authenticity of the 1998 Plan documents. See Kerber v. Qwest Group Life Ins. Plan, No. 07-cv-00644-WDM-KLM, 2008 WL 4630558, at *2 (D.Colo. Oct. 17, 2008). The district court dismissed Claim 1 of the AC, which forms the first two issues on appeal. We review the grant of summary judgment de novo, applying the same standard as the district court. Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243, 1246 (10th Cir.2010) (citation omitted). In so doing, we view the evidence and make inferences in the light most favorable to the nonmovant. Id. Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party” on the issue. Anderson v. Liberty Lobby, Inc., All U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Although we view the evidence and draw reasonable inferences therefrom" }, { "docid": "5749590", "title": "", "text": "things, possession of false identification documents in violation of NRS § 205.465. Nevada eventually dismissed the charges. On August 14, 2009, Fayer filed suit against Vaughn, the NGCB, and the Mirage in Nevada state court alleging claims for (1) false arrest/false imprisonment, battery, and premises liability under Nevada law; and (2) false arrest and conspiracy to commit false arrest under 42 U.S.C. § 1983. The defendants removed the action to federal court on December 18, 2009. Fayer filed an amended complaint in federal district court on December 31, 2009. Under Rule 12(b)(6), the district court granted defendants’ separate motions to dismiss all the claims in Fayer’s amended complaint and denied Fayer leave to amend. On appeal, Fayer challenges the dismissal of each of his claims. II. Standard of Review We review de novo the district court’s decision to grant defendants’ motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir.2008). A motion to dismiss will only be granted if the complaint fails to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citations omitted). “We accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the non-moving party.” Manzarek, 519 F.3d at 1031. Although factual allegations are taken as true, we do not “assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981). Therefore, “conclusory allegations of law and" }, { "docid": "9976300", "title": "", "text": "the same standard as the district court.” Jaramillo v. Adams Cnty. Sch. Dist. 14, 680 F.3d 1267, 1268 (10th Cir.2012). Summary judgment is appropriate only if “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). We view all facts and evidence in the light most favorable to the party opposing summary judgment. Morris v. City of Colo. Springs, 666 F.3d 654, 660 (10th Cir.2012). We also review de novo a district court’s grant of a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir.2012). We accept as true “all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” Kerber v. Qwest Group Life Ins. Plan, 647 F.3d 950, 959 (10th Cir.2011). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). All the parties agree that Oklahoma law controls our analysis. Accordingly, “our task here is to interpret and apply the law of [Oklahoma] as we believe the [Oklahoma] Supreme Court would.” High Plains Natural Gas Co. v. Warren Petroleum Co., 875 F.2d 284, 288 (10th Cir.1989); see also United States v. DeGasso, 369 F.3d 1139, 1145 (10th Cir.2004) (“It is axiomatic that state courts are the final arbiters of state law.”). If a state supreme court has not resolved a legal issue, we “may seek guidance from decisions rendered by lower courts in the relevant state, appellate decisions in other states with similar legal principles, district court decisions interpreting the law of the state in question, and the general weight and trend of authority in the relevant area of law.” Wade v. EMCASCO Ins. Co., 483 F.3d 657, 666 (10th Cir.2007) (citations and quotation omitted). A The district court concluded that the Schrocks’ claims against PLIVA and Qualitest, other than their warranty claims, were" }, { "docid": "4281929", "title": "", "text": "citation omitted). Therefore, we do not have jurisdiction to review the district court’s decision denying Plaintiffs’ motion to amend. We, thus, consider here only the district court’s decision dismissing with prejudice Plaintiffs’ claims asserted against the Insurer Defendants. III. STANDARD OF REVIEW This court reviews de novo the district court’s Fed.R.Civ.P. 12(b)(6) dismissal, accepting as true all of the wellpled factual allegations and asking “whether it is plausible that the plaintiff[s] [are] entitled to relief.” Bixler v. Foster, 596 F.3d 751, 756 (10th Cir.2010). Because the claims at issue here are based solely on New Mexico law, this “court’s task is ... to ascertain and apply the state[’s] law.” Wade v. EMCASCO Ins. Co., 483 F.3d 657, 665 (10th Cir.2007) (internal quotation marks omitted). In doing so, we follow the most recent decisions of the state’s highest court. Where no controlling state decision exists, [we] must attempt to predict what the state’s highest court would do.... [We] may seek guidance from decisions rendered by lower courts in the relevant state, appellate decisions in other states with similar legal principles, district court decisions interpreting the law of the state in question, and the general weight and trend of authority in the relevant area of law. Ultimately, however, the Court’s task is to predict what the [New Mexico] [Supreme [C]ourt would do. Our review of the district court’s interpretation of state law is de novo. Id. at 665-66 (internal quotation marks and citations omitted). IV. DISCUSSION A. New Mexico’s “filed rate” doctrine precluded Plaintiffs’ claims seeking damages and similar relief from the Defendant Insurers for charging excessive premiums Plaintiffs contend that the premium rate that the state superintendent of insurance established for title insurance in New Mexico is excessive and unreasonably high. Furthermore, Plaintiffs allege that this rate is the result of the Insurer Defendants acting in concert with the State Defendants to fix prices for title insurance, and that the Insurer Defendants conspired with each other and Superintendent of Insurance Eric Serna to bribe Serna to set unreasonably high title insurance rates. We agree with the district court that New Mexico’s" }, { "docid": "15000063", "title": "", "text": "and hostile working environment. The district court granted Memorial’s motion for judgment on the pleadings as to Ms. Morris’s First Amendment claim, on the ground that the notice did not contain speech on a matter of public concern as determined under the balancing approach derived from Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), and Pickering v. Board of Edu cation, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Subsequently, after permitting time for discovery, the district court granted Memorial’s motion for summary judgment on Ms. Morris’s Title VII claim, on the ground that she could not establish that the alleged harassment was based on her gender or that it was sufficiently “severe” or “pervasive” to affect her working environment. Ms. Morris now appeals the district court’s dismissal of both of her claims. II. STANDARD OF REVIEW Ms. Morris’s first claim was dismissed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, and her second was dismissed on summary judgment. “We review a dismissal granted under Rule 12(c) ‘under the standard of review applicable to a Rule 12(b)(6) motion to dismiss,’ ” Nelson v. State Farm Mut. Auto. Ins. Co., 419 F.3d 1117, 1119 (10th Cir.2005) (quoting McHenry v. Utah Valley Hosp., 927 F.2d 1125, 1126 (10th Cir.1991)), and “[ujnder that standard, we review the motion de novo, accepting factual allegations as true and considering them in the light most favorable to the plaintiff,” Tomlinson v. El Paso Corp., 653 F.3d 1281, 1285-86 (10th Cir.2011). In addition, “[w]e review a district court’s grant of summary judgment de novo, applying the same standard as the district court.” Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir.2011). Namely, summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In conducting the analysis, we “view[ ] all facts [and evidence] in the light most favorable to the party opposing summary judgment.” Grynberg v. Total, S.A., 538 F.3d 1336, 1346 (10th Cir.2008)." }, { "docid": "22239013", "title": "", "text": "also not actionable because she cannot show that Wells Fargo owed her a fiduciary or other duty of disclosure. The second set of issues concerns whether these state-law claims are preempted or otherwise barred by federal law. We hold that they are not. HAMP and its enabling statute do not contain a federal right of action, but neither do they preempt otherwise viable state-law claims. We accordingly reverse the judgment of the district court on the contract, promissory estoppel, fraudulent misrepresentation, and ICFA claims, and affirm its judgment on the negligence claims and fraudulent concealment claim. I. Factual and Procedural Background We review de novo the district court’s decision to dismiss Wigod’s complaint for failure to state a claim. E.g., Abcarian v. McDonald, 617 F.3d 931, 933 (7th Cir.2010). We must accept as true all factual allegations in the complaint. E.g., Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Under the federal rules’ notice pleading standard, a complaint must contain only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint will survive a motion to dismiss if it “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A party who appeals from a Rule 12(b)(6) dismissal may elaborate on her allegations so long as the elaborations are consistent with the pleading. See Chavez v. Illinois State Police, 251 F.3d 612, 650 (7th Cir.2001); Highsmith v. Chrysler Credit Corp., 18 F.3d 434, 439-40 (7th Cir.1994) (reversing dismissal in relevant part based on such new elaborations); Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir.1992) (reversing dismissal based on new elaborations)." }, { "docid": "12686093", "title": "", "text": "12(c). The district court concluded that American has a duty to defend Park University in the state action under the property damage and the advertising injury provisions of the policy. Park Univ. Enters., 314 F.Supp.2d at 1111. We address each issue in turn. II We review a district court’s grant of a motion for judgment on the pleadings de novo, using the same standard that applies to a Rule 12(b)(6) motion. See Aspenwood Inv. Co. v. Martinez, 355 F.3d 1256, 1259 (10th Cir.2004). So doing, we accept all facts pleaded by the non-moving party as true and grant all reasonable inferences from the pleadings in favor of the same. Judgment on the pleadings should not be granted “unless the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.” United States v. Any & all Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir.2000). As with our practice for motions to dismiss under Rule 12(b)(6), documents attached to the pleadings are exhibits and are to be considered in our review of the district court’s grant of Park University’s Rule 12(c) motion. See Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir.1991); Fed.R.Civ.P. 10(c). Our primary task is to construe the insurance policy between Park University and American. Because this case arises under our diversity jurisdiction, we apply Kansas’ choice-of-law principles. Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1532 (10th Cir.1996). “Kansas follows the general rule that the law of the state where the insurance contract is made controls.” Safeco Ins. Co. of Am. v. Allen, 262 Kan. 811, 941 P.2d 1365, 1372 (1997). The policy in this case was made for Park University in Kansas and was delivered to it there. As a result, we apply Kansas law. Like any other contract, the language of an insurance policy is construed to give effect to the intention of the parties. Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 840 P.2d 456, 459 (1992). If a policy is unambiguous," }, { "docid": "2598504", "title": "", "text": "Lenexa, Kansas. As an employment benefit, Mr. Settles was insured under a group policy issued by defendant which provided both life and health insurance. Under the group insurance policy, Long Motor paid a monthly premium to defendant and was required to give advance written notice to defendant if it intended to terminate coverage of an employee. On October 17, 1986, Mr. Settles was advised by a representative of defendant that his health insurance coverage had been terminated. However, on October 22, 1986, Mr. Settles was told by an agent of defendant that his health insurance coverage had not been terminated and that he had effectively exercised an extension of his health insurance coverage. On October 24, 1986, Mr. Settles was notified by defendant that it had unilaterally terminated his health insurance coverage effective October 7, 1986. Plaintiff alleges that as a direct consequence of defendant’s actions in terminating her husband’s health insurance, he became severely depressed and suffered a heart attack on October 24, 1986. As a result of the heart attack, Mr. Settles died on October 29, 1986. Plaintiff filed suit against defendant, alleging breach of contract, the tort of outrage, fraudulent denial of insurance coverage, and wrongful death under Kansas law. Defendant filed a motion to dismiss, arguing both that ERISA preempted plaintiff’s state law claims, and alternatively that plaintiff had failed to state a claim under Kansas Law. The district court granted defendant’s motion to dismiss, holding that ERISA preempted plaintiff’s claim. Settles v. Golden Rule Ins. Co., 715 F.Supp. 1021 (D.Kan.1989). Arguing that there were insufficient facts before the district court for it to find that ERISA applied to Long Motor’s employee benefit plan and that ERISA does not preempt her wrongful death claim, plaintiff appeals the dismissal of her cause of action. DISCUSSION We review de novo the granting of a motion to dismiss for failure to state a claim for which relief can be granted, and we presume that the allegations of the complaint are true. See Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). In reviewing the dismissal, we must" }, { "docid": "22581854", "title": "", "text": "applied an incorrect standard to grant dismissal; (2) failed to grant a default judgment against defendant Malone even though evidence showed that he evaded service of process and had actual knowledge of the lawsuit; and (3) was biased in defendants’ favor in applying an incorrect dispositive standard and construing the facts in defendants’ favor, thus violating plaintiffs’ due process rights. Although the first argument is ostensibly a challenge to the standard of review applied by the district court, it is more fairly characterized as two distinct challenges: the first to the determination that plaintiffs’ alleged injuries were due to then-status as minority shareholders of MET-CO; the second to the court’s application of the PSLRA. We start with the standard of review, and consider each contention in turn. II. Standards of Review on Appeal We review de novo the district court’s Rule 12(b)(6) dismissal. See Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir.2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1949, 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)). “[W]e assume the factual allegations are true and ask whether it is plausible that the plaintiff is entitled to relief.” Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir.2009). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949. We also review de novo the legal issue of plaintiffs’ standing to bring then-claims. See Law Co. v. Mohawk Constr. & Supply Co., 577 F.3d 1164, 1173 (10th Cir. 2009). III. Dismissal for Failure to State a Claim A. RICO Standing The district court held that plaintiffs, as METCO minority shareholders, lacked standing to bring a RICO claim" }, { "docid": "4281928", "title": "", "text": "97 L.Ed. 245 (1952) (“[T]he mere fact that a judgment previously entered has been reentered ... in an immaterial way does not toll the time within which review must be sought.”); Bridge v. U.S. Parole Comm’n, 981 F.2d 97, 102 (3d Cir.1992) (“When a court reenters a judgment without altering the substantive rights of the litigants, the entry of the second judgment does not affect the time within which a party must appeal the decisions made in the first order.”); Offshore Prod. Contractors, Inc. v. Republic Underwriters Ins. Co., 910 F.2d 224, 229 (5th Cir.1990) (applying Minneapolis-Honey well), superseded by rule on other grounds recognized by Catz v. Chalker, 566 F.3d 839, 841 n. 1 (9th Cir.2009). For these reasons, Plaintiffs failed to file a timely notice of appeal from the district court’s decision denying Plaintiffs’ post-dismissal motion to amend their complaint. “This court can exercise jurisdiction only if a notice of appeal is timely filed. A timely notice of appeal is both mandatory and jurisdictional.” Allender, 439 F.3d at 1239 (internal quotation marks and citation omitted). Therefore, we do not have jurisdiction to review the district court’s decision denying Plaintiffs’ motion to amend. We, thus, consider here only the district court’s decision dismissing with prejudice Plaintiffs’ claims asserted against the Insurer Defendants. III. STANDARD OF REVIEW This court reviews de novo the district court’s Fed.R.Civ.P. 12(b)(6) dismissal, accepting as true all of the wellpled factual allegations and asking “whether it is plausible that the plaintiff[s] [are] entitled to relief.” Bixler v. Foster, 596 F.3d 751, 756 (10th Cir.2010). Because the claims at issue here are based solely on New Mexico law, this “court’s task is ... to ascertain and apply the state[’s] law.” Wade v. EMCASCO Ins. Co., 483 F.3d 657, 665 (10th Cir.2007) (internal quotation marks omitted). In doing so, we follow the most recent decisions of the state’s highest court. Where no controlling state decision exists, [we] must attempt to predict what the state’s highest court would do.... [We] may seek guidance from decisions rendered by lower courts in the relevant state, appellate decisions in other states" }, { "docid": "5797660", "title": "", "text": "court and sought summary judgment. The district court granted Reliance’s third summary judgment motion. The district court concluded that, as long as Reliance had considered the contrary opinion of Thomas’ doctors when making its coverage decision, Reliance had not abused its discretion in discrediting those opinions and denying Thomas’ claim. DISCUSSION I. Standard of Review “[A] denial of benefits challenged under [ERISA] is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The principal issue on appeal is whether the district court erred in reviewing Reliance’s decision for abuse of discretion based on its conclusion that the Policy granted Reliance discretionary authority. We review the district court’s grant of summary judgment de novo. See Lang v. Long-Term Disability Plan, 125 F.3d 794, 797 (9th Cir.1997). We also review de novo Thomas’ “contention that the district court did not apply the proper standard of review.” McDaniel v. Chevron Corp., 203 F.3d 1099, 1107 (9th Cir.2000). Our consideration of Thomas’ claim is guided by our recent en banc decision, Kearney v. Standard Ins. Co., in which we held that district courts must review claims de novo unless the discretion to grant or deny claims is “unambiguously retained” by a plan administrator or fiduciary. 175 F.3d at 1090 (quoting Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992)). We concluded that unambiguous retention of discretion by an administrator or fiduciary is required because of the well-settled rule of policy interpretation dictating that “ambiguities are construed in favor of the insured.” Id. Applying this principle to the plan at issue in that case, we held that a policy that conditions payment of benefits on the “receipt of satisfactory written proof’ of disability is ambiguous because it is susceptible of at least three interpretations, two of which would not confer absolute discretion on the administrator or fiduciary. Id. at 1089-90 (quoting benefit plan)" }, { "docid": "2598505", "title": "", "text": "on October 29, 1986. Plaintiff filed suit against defendant, alleging breach of contract, the tort of outrage, fraudulent denial of insurance coverage, and wrongful death under Kansas law. Defendant filed a motion to dismiss, arguing both that ERISA preempted plaintiff’s state law claims, and alternatively that plaintiff had failed to state a claim under Kansas Law. The district court granted defendant’s motion to dismiss, holding that ERISA preempted plaintiff’s claim. Settles v. Golden Rule Ins. Co., 715 F.Supp. 1021 (D.Kan.1989). Arguing that there were insufficient facts before the district court for it to find that ERISA applied to Long Motor’s employee benefit plan and that ERISA does not preempt her wrongful death claim, plaintiff appeals the dismissal of her cause of action. DISCUSSION We review de novo the granting of a motion to dismiss for failure to state a claim for which relief can be granted, and we presume that the allegations of the complaint are true. See Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). In reviewing the dismissal, we must determine whether plaintiff can prove any set of facts to support her claim. Id. A. Whether ERISA Preemption Can Be Raised as a Defense in this Case. ERISA applies only to benefit plans offered by employers engaged in interstate commerce. See 29 U.S.C. § 1003(a)(1). On appeal, plaintiff first argues that ERISA cannot be applied to this case because there was no evidence before the district court which proved that Long Motor was engaged in business affecting interstate commerce. The defendant has the burden of proving the preemption defense. See Kanne v. Connecticut Gen. Life Ins. Co., 867 F.2d 489, 492 n. 4 (9th Cir.1988), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989). However, because plaintiff’s complaint pleads ample facts to support the conclusion that Long Motor participated in business affecting interstate commerce, we find that plaintiff conceded that issue. Plaintiff also argues that because she brought her action in diversity and did not raise any claims under ERISA in her complaint, we should look only to her complaint to establish" }, { "docid": "22626319", "title": "", "text": "The district court certified that its orders involved a controlling question of law as to which there is a substantial ground for a difference of opinion and that appeal may materially advance the ultimate termination of the litigation. All appellants and cross-appellants timely sought leave from this court to appeal from the district court’s interlocutory order pursuant to 28 U.S.C. § 1292(b), and we granted their requests. All defendants except State Farm now appeal the district court’s order concluding that the water damage resulting from the levee breaches was not excluded by their policies’ flood exclusions. The Chehardy plaintiffs and the Vanderbrook plaintiffs cross appeal the district court’s grant of State Farm’s motions to; dismiss. And Humphreys cross appeals the district court’s denial of her motion for partial summary judgment on the issue whether her policy’s hurricane-deductible endorsement provides coverage for her losses. II. STANDARD OF REVIEW We review de novo the district court’s order on a motion to dismiss for failure to state a claim under Rule 12(b)(6). The “court accepts ‘all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’ ” Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.1999)). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, — U.S. -, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 1965 (quotation marks, citations, and footnote omitted). Generally, in deciding a motion to dismiss for failure to state a claim, if “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.” Fed.R.Civ.P. 12(b). In this case, that would normally include the insurance contracts, since those documents were" }, { "docid": "20712797", "title": "", "text": "September 29, 2009, approximately two months before [the instant] suit was commenced.” Aplt.App. at 65. Ms. Ro-senfield subsequently filed a timely notice of appeal. II. Standard of Review We review a district court’s dismissal of a complaint under Rule 12(b)(6) de novo, and apply “the same legal standard as the district court.” Jordan-Arapahoe, LLP v. Bd. of Cnty. Comm’rs, 633 F.3d 1022, 1025 (10th Cir.2011). We must accept as true “all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009); see Morris v. City of Colorado Springs, 666 F.3d 654, 660 (10th Cir.2012). In order to survive a motion to dismiss brought under Rule 12(b)(6), the plaintiff must allege sufficient facts to make her claim to relief plausible on its face. See Jordan-Arapahoe, 633 F.3d at 1025; Kerber v. Qwest Grp. Life Ins. Plan, 647 F.3d 950, 959 (10th Cir.2011). “[A] plaintiffs obligation to provide the ‘grounds’ of his ‘entitlefment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). “A claim has facial plausibility when the [pleaded] factual content ... allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Jordan-Arapahoe, 633 F.3d at 1025 (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)) (internal quotation marks omitted). In addition to the allegations contained in the complaint, the court may consider attached exhibits and documents incorporated into the complaint, so long as the parties do not dispute the documents’ authenticity. See Smith, 561 F.3d at 1098. III. Discussion Ms. Rosenfield presents three separate issues for review in her opening brief. First, she argues that the district court erred in holding that she failed to exercise her" }, { "docid": "19002103", "title": "", "text": "for relief depended upon his reformation claim, the action should be dismissed in its entirety. We review the district court’s grant of summary judgment de novo, applying the same standard as the district court. Allstate Ins. Co. v. Murray Motor Imports Co., 357 F.3d 1135, 1138 (10th Cir.2004). “Summary judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Id. (quoting Fed.R.Civ.P. 56(c)). Colorado law governs our analysis of Plaintiffs underlying claims. Hill v. Allstate Ins. Co., 479 F.3d 735, 739 (10th Cir.2007). In Brennan, 961 P.2d at 554, the Colorado Court of Appeals held that “when ... an insurer fails to offer the insured optional coverage that satisfies the [statute], additional coverage in conformity with the offer mandated by statute will be incorporated into the policy.” According to Plaintiffs interpretation of this holding, reformation requires incorporation of the complete coverage option that the insurer should have offered to the insured, covering all four categories of persons listed in Brennan. Plaintiff therefore argues that he has standing because reformation un der Brennan would provide Plaintiff as the named insured with enhanced PIP coverage, redressing the injury allegedly caused by Defendant’s violation of Plaintiffs right to receive a compliant offer of coverage. We hold that Plaintiff had standing to bring this action. At the time Plaintiff filed suit, his argument was not foreclosed by precedent and was based on at least a colorable reading of Colorado law. See Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir.2005) (“Standing is determined as of the time the action is brought.”). By holding that Plaintiff had no standing because reformation would not entitle Plaintiff to enhanced PIP benefits for his own injuries, the district court “put the merits cart before the standing horse.” Initiative and Referendum Inst. v. Walker, 450 F.3d 1082, 1093 (10th Cir.2006) (en banc). The court erred in concluding that Plaintiff lacked" }, { "docid": "22837310", "title": "", "text": "Court held that Fleisher could not show that Standard’s decision reflected an unreasonable interpretation or application of the Standard Policy. The District Court recognized that there was a conflict of interest arising from the fact that Standard both paid benefits and made the offset decision, and that such a conflict had to be considered in deciding whether Standard had abused its discretion. It concluded, however, that Standard’s interpretation of pertinent policy provisions was not so close as to make the conflict of interest a determinative factor. The Court also dismissed Fleisher’s § 502(a)(3) claims for breaches of fiduciary duty and contract, concluding that Standard’s conduct was not improper. II. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over a district court’s grant of a motion to dismiss pursuant to Rule 12(b)(6). Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir.2009). Accordingly, we must “ ‘accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.’ ” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir.2008)). To survive a motion to dismiss, a complaint must contain sufficient factual allegations, taken as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (holding that the plausibility pleading standard articulated in Twombly applies to all civil actions). III. Fleisher’s coverage under the Standard Policy, an employee welfare benefit plan, is governed by ERISA, 29 U.S.C. §§ 1001, et seq. Section 502(a)(1)(B) of ERISA creates a civil cause of action for a plan participant “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his" }, { "docid": "21254283", "title": "", "text": "court certified its summary judgment order as a final judgment under Rule 54(b), Anderson filed the instant appeal. Anderson contends that the district court erred by dismissing her right to privacy and intrusion upon seclusion claims against the media defendants, by granting the media defendants’ motion for summary judgment on her publication of private facts claim asserted against the media defendants, and by denying her motion to amend her complaint against them. II. A. The Media Defendants’ Motion to Dismiss We first review the district court’s order partially granting the media defendants’ motion to dismiss pursuant to Rule 12(b)(6) as to Anderson’s right to privacy and intrusion upon seclusion claims. We review the district court’s order de novo and apply the same standard as the district court. Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006). Rule 12(b)(6) provides for dismissal of a plaintiffs claims for “failure to state a claim upon which relief can be granted.... ” We accept as true all well-pleaded factual allegations and view them in the light most favorable to Anderson, the nonmoving party. Moore, 438 F.3d at 1039. “We may uphold the grant of a motion to dismiss if, viewing the well-pleaded factual allegations in the complaint as true and in the light most favorable to the non-moving party, the complaint does not contain ‘enough facts to state a claim to relief that is plausible on its face.’ ” Macarthur v. San Juan County, 497 F.3d 1057, 2007 WL 2045456, at *5, 2007 U.S.App. LEXIS 17008, at *16 (10th Cir.2007) (quoting Bell Atlantic Corp. v. Twombly, — U.S.-, 127 S.Ct. 1955, 1968-69, 167 L.Ed.2d 929 (2007)). As we have explained this new standard for reviewing a motion to dismiss, “the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007). 1. Anderson’s Federal Right to Privacy Claim Anderson" } ]

[ { "docid": "18919167", "title": "", "text": "Id. Specifically, the official must have had either actual intent to cause the deprivation, or have been “deliberately indifferent” to a substantial risk that such a deprivation would occur. Id. at - -, 114 S.Ct. at 1977-78. The standard for deliberate indifference is subjective and based on actual knowledge of the substantial risk; “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at -, 114 S.Ct. at 1979. If, in the face of such knowledge, the official chose to do nothing to prevent the harm from occurring, the official would then be liable. Id. A. Campbell’s Deprivation was Sufficiently Serious Incarceration of an individual beyond the term of his sentence is “quintessentially punitive.” Sample v. Diecks, 885 F.2d 1099, 1108-09 (3rd Cir.1989); see also Moore v. Tartler, 986 F.2d 682 (3d Cir.1993); Haygood v. Younger, 769 F.2d 1350 (9th Cir.1985); Lundblade v. Franzen, 631 F.Supp. 214 (N.D.Ill.1986). Even if such imprisonment is the result of an innocent error on the part of the state officials who were responsible, it is still punitive in nature, though the mistaken nature of the punishment may bear on whether the punishment was deliberately imposed. Id. at 1108-09. Anything more than a de minimis incarceration beyond a prisoner’s proper sentence satisfies the requirement, under Farmer, — U.S. at -, 114 S.Ct. at 1977, that the punishment, if inflicted along with the culpable state of mind, be “sufficiently serious” to pose a constitutional violation. See Haygood, 769 F.2d at 1354 (“[detention beyond the termination of a sentence could constitute cruel and unusual punishment if it is the result of ‘deliberate indifference’ to the prisoner’s liberty interest”). Here, plaintiff was imprisoned up to two years beyond his legal release date. The deprivation was sufficiently serious to support Campbell’s Eighth Amendment claim. B. Culpable State of Mind Whether defendants acted with a sufficiently culpable state of mind is the real question at issue here. As noted above, plaintiff has alleged that defendants, especially Williams intentionally engaged" } ]

[ { "docid": "22130759", "title": "", "text": "punishment within the meaning of the eighth amendment. Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 2570, 57 L.Ed.2d 522 (1978) (confinement in prison or isolation cell is form of punishment under eighth amendment); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir.1985) (en banc), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986). Indeed, confinement in a prison pursuant to a conviction but beyond the term of a sentence seems to us to be quintessentially punitive. Here, for example, the state, through its official agents, intended to confine, did confine, and intended to continue to punish Sample throughout his confinement, including the unwarranted portion of it. Admittedly, the unwarranted portion of Sample’s incarceration was based upon an error: Had Diecks known that Sample’s sentence was complete, the record suggests that Diecks would no longer have detained him. Although a mistaken basis for detention may have some bearing on whether that detention was “cruel and unusual,” see infra, a mistaken basis for imprisonment does not alter the punitive nature of Sample’s prolonged imprisonment. During the period of Sample’s unwarranted detention, the state’s avowed purpose for holding him was punitive; the relevant state actor believed he was carrying out the state’s edict to punish Sample by detaining him. A subsequent determination that Sample should not have been detained — was improperly subjected to punishment — does not relate back to the relevant time period, thereby vitiating the state’s intent during that time period. 2. We now examine whether Sample’s detention beyond term was “cruel and unusual.” “Today the Eighth Amendment prohibits punishments which, although not physically barbarous, ‘involve the unnecessary and wanton infliction of pain,’ Gregg v. Georgia, [428 U.S. 153, 183, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859 (1976) ], or are grossly disproportionate to the severity of the crime, Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977) (plurality opinion); Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910).” Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2398, 69 L.Ed.2d 59" }, { "docid": "1541348", "title": "", "text": "See Anderson 483 U.S. at 639-40, 107 S.Ct. at 3038-39. In fact, we need only look to decisional law when an official can argue that the newly emerging status of an individual’s right made it less than clear for a reasonable official to know how to proceed. See Bergquist v. County of Cochise, 806 F.2d 1364, 1368 (9th Cir.1986). We recently disposed of a similar argument summarily in Wood v. Ostrander, 879 F.2d 583, 592 (9th Cir.1989). There, we said “Ostrander seemingly suggests that this case can be disposed of if it does not bear a strict factual similarity to previous cases finding liability. However, this crabbed view of the good faith immunity principle cannot withstand analysis.” Here, the prison officials’ obligation to investigate Alexander’s claim need not be set out in decisional law. Their duties are clearly established by virtue of the Bureau of Prisons regulations and policies which they were legally obligated to perform. Second, even if we accepted the defendants’ theory as to the need for a prior case establishing the duty at issue, Alexander would still prevail because he is fortunate enough to have had a similar issue previously litigated and decided in his favor—a case which inexplicably both parties failed to cite in their briefs. In Haygood v. Younger, 769 F.2d 1350 (9th Cir.1985) (en banc), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986) this court, sitting en banc, considered a case under § 1983 in which prison officials failed to investigate a claim that a prisoner’s sentence had been miscalculated. Id. at 1355. As a result the prisoner was incarcerated beyond his lawful term. In Haygood, we held that a judgment against prison officials was proper because “after being put on notice, [the prison officials] simply refused to investigate a computational error.” Id. We found that the failure to investigate was in itself sufficient evidence to support a finding of liability. It is worth noting that in Haygood’s case, as here, the plaintiff’s argument that he was entitled to be released from prison was not clearly meritorious from the face" }, { "docid": "2877321", "title": "", "text": "MEMORANDUM-DECISION and ORDER GLENN T. SUDDABY, District Judge. Plaintiff filed this pro se civil rights action pursuant to 42 U.S.C. § 1983, against thirteen (13) employees of the New York State Department of Corrections (“DOCS”), alleging that they violated his rights under the First, Eighth and Fourteenth Amendments of the United States Constitution as well as his rights under Article 1, Section 6 of the New York Constitution. (Dkt. No. 1 [Plf.’s Compl.].) Currently pending before the Court are (1) Defendants’ motion for summary judgment pursuant to Fed.R.Civ.P. 56, (2) Plaintiffs cross-motion for summary judgment, (3) Plaintiffs cross-motion for an Order to stay decision on Defendants’ motion, and to compel discovery, and (4) Plaintiffs cross-motion for leave to amend his Complaint. (Dkt. Nos. 39, 42.) On September 19, 2008, United States Magistrate Judge George H. Lowe filed a Report-Recommendation recommending that Defendants’ motion for summary judgment be granted in part and denied in part, and that Plaintiffs three cross-motions be denied. (Dkt. No. 47.) On October 3, 2008, Plaintiff filed Objections to that Report-Recommendation. (Dkt. No. 49.) For the reasons set forth below, Magistrate Judge Lowe’s Report-Recommendation is accepted as modified by the withdrawal of certain of Plaintiffs claims and his introduction of new evidence on appeal. I. STANDARD OF REVIEW When specific objections to a magistrate judge’s Report-Recommendation are made, the Court makes a “de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” See 28 U.S.C. § 636(b)(1)(C). When only general objections are made, the Court reviews for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.1999). Similarly, when a party makes no objection to a portion of a Report-Recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducting the appropriate review, the Court may" }, { "docid": "23300106", "title": "", "text": "Herman, 983 F.2d 107 (8th Cir.1993), we stated that an inmate had a clearly established right to be released from prison once a judge’s order suspending his sentence became final, because at that point, “the state lost its lawful authority to hold Slone. Therefore, any continued detention unlawfully deprived Slone of his liberty, and a person’s liberty is protected from unlawful state deprivation by the due process clause of the Fourteenth Amendment.” Id. at 110 (emphasis added). Accordingly, we denied qualified immunity protection to the prison officials/defendants. Id. at 109-11. As in Young and Slone, Davis has alleged that the defendants deprived him of a protected liberty interest by continuing to confine him after he completed his sentence and was ordered immediately released. Other circuits have recognized this right as well. See, e.g., Lee v. City of Los Angeles, 250 F.3d 668, 683 (9th Cir.2001) (“Moreover, ‘[t]he Supreme Court has recognized that an individual has a liberty interest in being free from incarceration absent a criminal conviction.’ ” (quoting Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir.1992))); Armstrong v. Squadrito, 152 F.3d 564, 576 (7th Cir.1998) (concluding that the Due Process Clause guards against prolonged detentions without an appearance when a detainee complains of confinement following arrest pursuant to valid warrant); Alexander v. Perrill, 916 F.2d 1392, 1398 (9th Cir.1990) (“[P]rison officials who are under a duty to investigate claims of computational errors in the calculation of prison sentences may be liable for their failure to do so when a reasonable request is made.”); Golson v. Dep’t of Corrections, 914 F.2d 1491, 1990 WL 141470, *1 (4th Cir. Oct. 2, 1990) (unpublished table decision) (“Incarceration beyond the termination of one’s sentence may state a claim under the due process clause and the eighth amendment.”); Douthit v. Jones, 619 F.2d 527, 532 (5th Cir.1980) (finding claim based on continued confinement without valid judicial order was cognizable under § 1983 as a deprivation of due process); cf. Moore v. Tartler, 986 F.2d 682, 686 (3d Cir.1993) (“Subjecting a prisoner to detention bé-yond the termination of his sentence has been held to" }, { "docid": "14574001", "title": "", "text": "no longer have pendent jurisdiction over plaintiffs state law claims. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed. R.Civ.P. 72(b). Plaintiff has timely objected to certain parts of the Magistrate Judge’s report. When either party objects to any portion of the Magistrate Judge’s Findings and Recommendation, the district court must make a de novo review of that portion of the Magistrate Judge’s report. 28 U.S.C. § 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). The district court must also review de novo the legal principles in the entire report, not just the part objected to. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.1983). I decline to adopt the Magistrate Judge’s Findings and Recommendations. Instead, I dismiss the claims against defendants Abbott, Lewis, Toronto, Faatz, and Does 2 through 10, on grounds that while plaintiff was deprived of a liberty interest, and his unlawful detention may also have been contrary to the Eighth Amendment, a reasonable public official in 1990 would not have known that the actions taken by these defendants violated plaintiffs clearly established constitutional rights. I deny the motion for summary judgment as to defendants Prinslow and “John Doe 1.” I retain jurisdiction over the pendent claims. BACKGROUND In January, 1989, plaintiff was a pretrial detainee at the Marion County Jail (“Jail”), in the custody of Marion County Sheriff Prinslow. On January 13,1989, plaintiff was convicted in Marion County Circuit Court of two counts of driving under the influence of intoxicants and two counts of driving with a revoked license. He was fined, and given a suspended prison sentence. As a condition of probation, plaintiff was ordered confined to the Marion County Restitution Center (“Work Center”) (a work-release facility) for a period of six months. The Work Center is also operated by Sheriff Prinslow. On January 20, 1989, plaintiff was transferred from the Jail to the Work Center. On February 24,1989, plaintiff failed to return to the Work" }, { "docid": "23280044", "title": "", "text": "him in his personal capacity. Defendant Groll contends that § 1983 claims “require a showing of an affirmative link between the defendant’s conduct and any constitutional violation,” and that Appellant has failed to allege such a link. Appellee’s Br. at 7 (quoting Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.1991)) (quoting magistrate judge’s report and recommendation); see also Rizzo v. Goode, 423 U.S. 362, 370-77, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). Appellant responds by arguing that neither Summers nor Rizzo required that an affirmative link be alleged in the complaint; rather, such a link was required only as part of evidentiary proceedings. See Reply Br. at 15. However, we have previously required plaintiffs to allege the affirmative link in their complaints, although with little explanation on that point. See Meade v. Grubbs, 841 F.2d 1512, 1527-28 (10th Cir.1988). Moreover, we have specified this requirement previously in a number of unpublished opinions. See Dametz v. Romer, No. 93-1213, 1993 WL 495066, at *1 (10th Cir. Dec.l, 1993) (affirming dismissal because the plaintiff “failfed] to allege facts demonstrating that the Defendants personally participated in the alleged consti tutional violations, or acquiesced in the alleged wrongdoing”) (citations omitted); Ernst v. Gunter, No. 93-1015, 1993 WL 436833, at *2 (10th Cir. Oct.29, 1993) (holding that the plaintiff “fail[ed] to allege sufficient facts to establish an ‘affirmative link’ ”); Chamberlain v. City of Albuquerque, No. 92-2089, 1993 WL 96883, at *5 (10th Cir. March 29, 1993) (holding that “Plaintiff must aver facts sufficient to support [such] a determination. ... Plaintiff has not alleged any such facts.”) (citation omitted); Richardson v. Romer, No. 91-1410, 1992 WL 73048, at *1 (10th Cir. April 9, 1992) (bare allegation that superior officers should have known- of constitutional violations did not state a claim for relief under § 1983). This allegation requirement has been adopted by other circuits. See, e.g., Rivera v. Green, 775 F.2d 1381, 1384 (9th Cir.1985), cert. denied, 475 U.S. 1128, 106 S.Ct. 1656, 90 L.Ed.2d 198 (1986); Alexander v. Ware, 714 F.2d 416, 420 (5th Cir. 1983); Rogers v. Rulo, 712 F.2d 363, 366" }, { "docid": "7899276", "title": "", "text": "challenge the orders granting the City Defendants' motions to dismiss, as well as the order granting the State Defendants’ motion for summary judgment. . The case against the City Defendants is addressed in section 4.b infra. . We have suggested in the past, and other courts within and without this Circuit have held, that detention beyond that authorized by law may violate the Eighth Amendment. See Calhoun v. N.Y. State Div. of Parole Officers, 999 F.2d 647, 654 (2d Cir. 1993) (assuming that detention of a prisoner beyond the end of his term could violate the Eighth Amendment in appropriate circumstances, but finding no violation where the unauthorized detention lasted only five days and the plaintiff failed to demonstrate the defendants’ deliberate indifference); see also Sample v. Diecks, 885 F.2d 1099, 1108-10 (3d Cir.1989); Haygood v. Younger, 769 F.2d 1350, 1354-55 (9th Cir. 1985); Rivera v. Carroll, No. 07-civ-7847 (RJS), 2009 WL 2365240, at *6-7 (S.D.N.Y. Aug. 3, 2009). Plaintiffs, however, have not relied on the authority of the Eighth Amendment, either in their discussion of the merits of their case or in their argument that the court below erred in holding qualified immunity applicable. Accordingly, any argument based on the Eighth Amendment has been waived. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998). . The Court also stated that ”[t]he only sentence known to the law is the sentence or judgment entered upon the records of the court.\" Id. at 464, 56 S.Ct. 760. This expression features prominently in Plaintiffs’ brief. In Wampler, however, this observation was not made in relation to any potential legal infirmity in requiring Wampler to remain in prison until payment of all fines and costs, despite the fact that this condition was not a part of the sentence pronounced by the judge. Rather, the Court’s statement arose in a discussion regarding whether a collateral attack can be made on the accuracy of the judgment \"entered upon the records of the court,\" on the theory that the judgment was not \"the authentic expression of the sentence of the judge.” Id. The" }, { "docid": "1525020", "title": "", "text": "verdict” motion in the district court. The defendants opposed the motion and filed a “request for judgment,” and in June 1986 the matter was referred to United States Magistrate Franklin D. Burgess pursuant to 28 U.S.C. § 636(b)(1)(B) (1982). Magistrate Burgess treated the parties’ papers as cross-motions for summary judgment and concluded that Hernandez’ constitutional rights had not been violated. The magistrate’s report and recommendation was approved and adopted by District Judge Jack E. Tanner, who entered judgment on September 8, 1986. II. STANDARD OF REVIEW We review a district court’s grant of summary judgment de novo. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 629 (9th Cir.1987). “Therefore ... this court sits in the same position as the district court and applies the same summary judgment test that governs the district court’s decision.” Id. at 630. Under Fed.R.Civ.P. 56(c), summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The “materiality” of a fact is determined by the substantive law governing the claim or defense. T W. Elec. Serv., 809 F.2d at 630. III. DISCUSSION In order to state a claim under section 1983, Hernandez must show: (1) the defendants acted under color of law, and (2) their conduct deprived him of a constitutional right. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir.1985) (en banc), cert. denied, — U.S. —, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986). “Liberty interests protected by the Fourteenth Amendment may arise from two sources — the Due Process Clause itself and the laws of the States.” Hewett v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868-69, 74 L.Ed.2d 675 (1983). State regulatory measures that impose “substantive limitations on the exercise of official discretion” may create a liberty interest. Baumann v. Arizona Dept. of Corrections, 754 F.2d 841, 844 (9th Cir.1985). Mere guidelines do not create a protected interest. Instead, a plaintiff must show “ ‘that particularized standards or criteria guide the State’s decisionmak-ers.’ ” Id. (quoting Olim v. Wakinekona, 461" }, { "docid": "5559684", "title": "", "text": "guaranteeing timely presentation to a magistrate, e.g., Idaho Code § 19-615, 49-1407, 49-1409, 49-1411, \"place[] substantive limitations on official discretion\" and contain \"explicitly mandatory language\" sufficient to create a liberty interest protected by the Fourteenth Amendment and actionable under Section 1983. Mendoza v. Blodgett, 960 F.2d 1425, 1428-29 (9th Cir.1992), cert. denied, - U.S. -; 113 S.Ct. 1005, 122 L.Ed.2d 154 (1993); see also Haygood v. Younger, 769 F.2d 1350, 1355 (9th Cir.1985) (en banc), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986). . The Ninth Circuit’s law was also clearly established. It employed an \"exigent circumstances” test to evaluate compliance with Ger-stein. See supra note 13. . Because Gerstein contemplates a balancing of interests, an \"objectively reasonable” decision depends in part on the factual circumstances of the case. Mrs. Hallstrom, arrested for minor traffic violations (none of which ultimately were pursued), and held for obstruction of justice (either for failure to produce her traffic license or for failure to voluntarily comply with booking) was kept incommunicado for several days without access to a magistrate. The only explanation for delay was to coerce voluntary compliance with booking procedures. No “objectively reasonable” official could view this concern as sufficiently exigent to hold Mrs. Hallstrom for four days. .These decisions are unpublished and indicate none of the underlying facts. For example they are silent on the length of the delay before the arrested individuals were presented to a magistrate. . The county apparently intended to outwait Halistrom. She relates: \"I asked if I was serving a life sentence. They said I was unless I submit[ted] to booking (waiving my rights) and that I would give up long before they do.\" Plaintiff's \"Asseveration\" at 15-16 contained in Addendum to ER. .In response to questioning about her diet, Susan Hallstrom explained \"[w]e’ve studied — we have arrived at our conclusions on diet by reading medical materials and consulting the Bible as to what foods are permissible and which are forbidden and by reading reports about contamination of food and the contamination of water.” Dep. of Susan Hallstrom at 40 contained" }, { "docid": "14574023", "title": "", "text": "CTS certificate. In any event, Sheriff Prinslow had a legal duty to transmit a CTS certification to the ODOC upon receipt of either a copy of the judgment or a request for certification from the inmate or ODOC officials, whichever came first. Defendants allegedly had several opportunities to rectify that omission. Plaintiff claims he wrote Sheriff Prinslow on at least one, and perhaps two, occasions in 1989, requesting a CTS certificate, but received no reply. Defendants question his account of events. That is a disputed issue of material fact. Plaintiff also sent the Sheriffs Office a CTS certification request form, dated April 2, 1990. A reply, dated May 16, was not received at EOCI until May 24. Although defendants question the date on which plaintiff mailed the request, a jury could find defendants ignored plaintiffs request for almost two months. The state defendants likewise had a legal duty to act. OAR 291-100-013(2)(d) provides that “The credit for time served will be given to the Parole Board by the Records Office as soon as it is known ...” (emphasis added). OAR 291-100-013(2)(e) provides that “[i]f county jail time credits are received by a Records Officer after the Parole Board has established a parole release date for a particular inmate, the Records Officer shall submit a corrected face sheet to the Parole Board.” To the extent plaintiff is asserting a claim for procedural due process case, the trial court will have to determine whether it was practical for defendants to implement additional procedures that would have reduced the risk of erroneous deprivation. See Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470 (9th Cir.1992) (additional pro cedures would have significantly reduced the risk of a prisoner being erroneously detained in Multnomah County Jail for 114 days). 2. Eighth Amendment: The facts alleged by plaintiff also state a claim under the Eighth Amendment. In Haygood v. Younger, 769 F.2d 1350 (9th Cir.1985) (en banc), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986), the Ninth Circuit held that confining a prisoner past his release date violates the Eighth Amendment." }, { "docid": "6263977", "title": "", "text": "F.3d 107, 111 (2d Cir.1998) (“§ 1101(a)(43)’s definition of ‘aggravated felony’ was limited to murder, certain drug and firearm trafficking crimes, and attempts and conspiracies to commit these crimes” prior to the passage of the Immigration Act of 1990). Thus, there is no doubt that Tapia-Garcia’s attempted murder conviction is an “aggravated felony.” Next, although the Second Circuit has not explicitly decided this issue, all the Courts of Appeals to consider the statute have concluded that 8 U.S.C. § 1326(b)(2) applies to defendants with pre-1988 aggravated felonies, and authorizes an enhanced sentence for reentry after deportation. See, e.g., United States v. Lozano, 138 F.3d 915, 916-17 (11th Cir.1998); United States v. Baca-Valenzuela, 118 F.3d 1223, 1228-29 (8th Cir.1997); United States v. Campbell, 94 F.3d 125, 126-28 (4th Cir.1996), cert. denied, 520 U.S. 1242, 117 S.Ct. 1847, 137 L.Ed.2d 1050 (1997); Scheidemann v. INS, 83 F.3d 1517, 1523-25 (3d Cir.1996); United States v. Cabrera-Sosa, 81 F.3d 998, 1000-01 (10th Cir.), cert. denied, 519 U.S. 885, 117 S.Ct. 218, 136 L.Ed.2d 151 (1996); United States v. Saenz-Forero, 27 F.3d 1016, 1020-21 (5th Cir.1994); United States v. Troncoso, 23 F.3d 612, 613-14 (1st Cir.1994), cert. denied, 513 U.S. 1116, 115 S.Ct. 912, 130 L.Ed.2d 793 (1995); United States v. Arzate-Nunez, 18 F.3d 730, 734-35 (9th Cir.1994). Therefore, I conclude that Tapia-Garcia cannot show the degree of prejudice necessary to satisfy this prong of the Strickland standard. Put another way, his appellate counsel would not have succeeded had he chosen to challenge whether the petitioner’s attempted murder conviction qualified as an “aggravated felony.” In short, there is no reasonable probability that the result of the appeal would have been different absent the appellate counsel’s alleged deficient performance. III. CONCLUSION After conducting a de novo review of those parts of the Report and Recommendation to which the petitioner objected and finding no clear error with respect to the balance of the Report and Recommendation, I adopt Magistrate Judge Peck’s Report and Recommendation in all respects. The motion is denied and the Clerk of the Court is directed to close the case. SO ORDERED. REPORT AND" }, { "docid": "23300107", "title": "", "text": "1474 (9th Cir.1992))); Armstrong v. Squadrito, 152 F.3d 564, 576 (7th Cir.1998) (concluding that the Due Process Clause guards against prolonged detentions without an appearance when a detainee complains of confinement following arrest pursuant to valid warrant); Alexander v. Perrill, 916 F.2d 1392, 1398 (9th Cir.1990) (“[P]rison officials who are under a duty to investigate claims of computational errors in the calculation of prison sentences may be liable for their failure to do so when a reasonable request is made.”); Golson v. Dep’t of Corrections, 914 F.2d 1491, 1990 WL 141470, *1 (4th Cir. Oct. 2, 1990) (unpublished table decision) (“Incarceration beyond the termination of one’s sentence may state a claim under the due process clause and the eighth amendment.”); Douthit v. Jones, 619 F.2d 527, 532 (5th Cir.1980) (finding claim based on continued confinement without valid judicial order was cognizable under § 1983 as a deprivation of due process); cf. Moore v. Tartler, 986 F.2d 682, 686 (3d Cir.1993) (“Subjecting a prisoner to detention bé-yond the termination of his sentence has been held to violate the eighth amendment’s proscription against cruel and unusual punishment.... [W]e did find that an eighth amendment violation occurred when an inmate was imprisoned nine months and eight days after the expiration of his sentence.”); Sample v. Diecks, 885 F.2d 1099, 1108 (3d Cir.1989) (“We think there can be no doubt that imprisonment beyond one’s term constitutes punishment within the meaning of the eighth amendment.”). For instance, the Eleventh Circuit has held that prisoners have a “constitutional right to be free from continued detention after it was or should have been known that the detainee was éntitled to release” and, in a misiden-tification case, cited cases from the Fifth and Seventh Circuits that also specifically recognized this right. Cannon v. Macon County, 1 F.3d 1558, 1563 (11th Cir.1993) (citing Sivard v. Pulaski County, 959 F.2d 662 (7th Cir.1992) (finding continued detention where sheriff knew it was wrongful states claim under § 1983 for due process violation), unrelated modification on rehearing, 15 F.3d 1022 (11th Cir.1994) (per curiam); Sanders v. English, 950 F.2d 1152 (5th Cir.1992)" }, { "docid": "17437250", "title": "", "text": "handbook of procedures. (Mariano Dep. 63:15-18.) The Borough does require that its officers complete their state Act 120 training. (Stadnitski Dep. 22:13-16.) On June 20, 2008, Kraft filed this suit against Gallagher, Mariano, and Dickson City. (Case No. 08-cv-1177, Doc. 1.) On August 19, 2008, Magistrate Judge Mann-ion granted a motion to consolidate Kraft’s case with the action brought by the other plaintiffs. (Doc. 15.) Kraft filed a motion for summary judgment on June 13, 2009. (Doc. 44.) On August 9, 2009, Magistrate Judge Mannion filed his R & R recommending that Kraft’s motion be denied. (Doc. 91.) Kraft objected to the entirety of the R & R on August 18, 2009. (Doc. 95.) Both parties have fully briefed the motion and the R & R objections, and the motion is ripe for disposition. LEGAL STANDARD I. Review of Report and Recommendation Where objections to a magistrate judge’s report are filed, the Court must conduct a de novo review of the contested portions of the report, 28 U.S.C. § 636(b)(1)(C), Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir.1989), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir.1984). In its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. 28 U.S.C. § 636(b)(1)(C); Owens v. Beard, 829 F.Supp. 736, 738 (M.D.Pa.1993) (McClure, J.). Although the review is de novo, the statute permits the Court to rely on the recommendations of the Magistrate Judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (“Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings and recommendations”); Goney, 749 F.2d at 6-7; Ball v. U.S. Parole Comm’n, 849 F.Supp. 328, 330 (M.D.Pa.1994) (Kosik, J.). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154, 106 S.Ct." }, { "docid": "9952469", "title": "", "text": "circumstance against him simply as a result of the guilty verdict. The jury was expressly instructed to the contrary. For the reasons stated, petitioner’s claims of constitutional error in the jury instructions must be dismissed. V. Petitioner’s next claim is that his death sentence violates the Eighth Amendment, because it is inherently disproportionate in light of his severe brain damage. The Eighth Amendment prohibits the infliction of cruel and unusual punishment. Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 2599, 91 L.Ed.2d 335 (1986). The scope of the prohibition against cruel and unusual punishment is measured by reference to “evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958); Ford, 477 U.S. at 406, 106 S.Ct. at 2600; Baumann v. Arizona Dep’t of Corrections, 754 F.2d 841 (9th Cir.1985). In defining those evolving standards, courts look to objective evidence of how society views a particular punishment. See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 2953-58, 106 L.Ed.2d 256 (1989); Enmund v. Florida, 458 U.S. 782, 788-96, 102 S.Ct. 3368, 3371-76, 73 L.Ed.2d 1140 (1982); Coker v. Georgia, 433 U.S. 584, 593-97, 97 S.Ct. 2861, 2866-68, 53 L.Ed.2d 982 (1977). The chief indicia of society’s perception of punishments are the laws enacted by the country’s legislatures and the actions of sentencing juries. Penry, 109 S.Ct. at 2953. One aspect of the Eighth Amendment’s protection is the requirement that the punishment be proportionate to the crime and to the culpability of the defendant. In order to impose the death sentence, a state must prove the defendant’s personal blameworthiness or moral culpability for the acts committed. Enmund, 458 U.S. at 797-801, 102 S.Ct. at 3376-78; Tison v. Arizona, 481 U.S. 137, 146-52, 107 S.Ct. 1676, 1682-85, 95 L.Ed.2d 127 (1987); Haygood v. Younger, 769 F.2d 1350 (9th Cir.1985), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986). The death penalty must be “directly related to the personal culpability of the criminal defendant.” California v. Brown, 479 U.S. 538, 545," }, { "docid": "1541349", "title": "", "text": "at issue, Alexander would still prevail because he is fortunate enough to have had a similar issue previously litigated and decided in his favor—a case which inexplicably both parties failed to cite in their briefs. In Haygood v. Younger, 769 F.2d 1350 (9th Cir.1985) (en banc), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986) this court, sitting en banc, considered a case under § 1983 in which prison officials failed to investigate a claim that a prisoner’s sentence had been miscalculated. Id. at 1355. As a result the prisoner was incarcerated beyond his lawful term. In Haygood, we held that a judgment against prison officials was proper because “after being put on notice, [the prison officials] simply refused to investigate a computational error.” Id. We found that the failure to investigate was in itself sufficient evidence to support a finding of liability. It is worth noting that in Haygood’s case, as here, the plaintiff’s argument that he was entitled to be released from prison was not clearly meritorious from the face of the objections he lodged with the prison officials. After the California prison officials decided which of Haygood’s four separate sentences should run consecutive or concurrent to each of the others, Haygood objected to the determination. The prison officials spoke with each other and responded to Haygood’s objections in writing. They attached an opinion from the state attorney general that they believed to be supportive of their letter. Haygood, 769 F.2d at 1353. Nonetheless, we concluded that the prison officials were deliberately indifferent to Haygood’s constitutional rights because they failed to address his credible evidence that he was entitled to release. Id. at 1355. Here, as in Haygood, the defendants’ responsibilities included ensuring the proper calculation of prison sentences. Nevertheless, when faced with the possibility that a mistake was made, they did nothing to attempt to determine whether Alexander’s claim was meritorious. We simply will not, as the defendants urge, embrace a rule which would allow prison officials to stand by idly after an inmate has raised the prospect that he is being unlawfully incarcerated" }, { "docid": "7899275", "title": "", "text": "specifying concurrent time, notwithstanding § 70.40(3)(c)(iii). . Although below Plaintiffs and the Defendants associated with the State of New York (“State Defendants”) agreed that Batthany was released on parole, the State Defendants suggest in their brief that Batthany was not a parolee at all, but rather was released on post-supervision release. Because the State Defendants admit that this distinction does not make a difference to the merits of this appeal, we do not address this potential factual disagreement and refer to both Sudler and Batthany throughout as \"parolees.” . Because Plaintiffs’ suits against the defendants associated with the City of New York (collectively, \"City Defendants”) were dismissed on a Fed.R.Civ.P. 12(b)(6) motion, we rely here on the allegations in Plaintiffs’ com plaint, rather than on the evidence they have adduced. . Only the procedural history relevant to this appeal is given here. . Judge Lynch denied a motion to reconsider his decision dismissing Sudler's complaint as against the City Defendants on October 14, 2009. . Plaintiffs' notice of appeal makes clear that they wish to challenge the orders granting the City Defendants' motions to dismiss, as well as the order granting the State Defendants’ motion for summary judgment. . The case against the City Defendants is addressed in section 4.b infra. . We have suggested in the past, and other courts within and without this Circuit have held, that detention beyond that authorized by law may violate the Eighth Amendment. See Calhoun v. N.Y. State Div. of Parole Officers, 999 F.2d 647, 654 (2d Cir. 1993) (assuming that detention of a prisoner beyond the end of his term could violate the Eighth Amendment in appropriate circumstances, but finding no violation where the unauthorized detention lasted only five days and the plaintiff failed to demonstrate the defendants’ deliberate indifference); see also Sample v. Diecks, 885 F.2d 1099, 1108-10 (3d Cir.1989); Haygood v. Younger, 769 F.2d 1350, 1354-55 (9th Cir. 1985); Rivera v. Carroll, No. 07-civ-7847 (RJS), 2009 WL 2365240, at *6-7 (S.D.N.Y. Aug. 3, 2009). Plaintiffs, however, have not relied on the authority of the Eighth Amendment, either in their discussion" }, { "docid": "5559683", "title": "", "text": "we mean to give license to those who would seek to frustrate the booking process or other administrative steps incident to arrest. As we acknowledge, infra at 1485, the government has a legitimate interest in orderly booking. . The county has never disputed that its insistence on booking before the prisoner is taken to a magistrate is a policy of the county. See Monell v. Department of Social Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978). Instead, it has argued, here and in similar actions in district court, that its policy is justified. See infra, at 1483-84. . This court has held that \"a violation of state law can serve as the basis of a [Sjection 1983 action `[w]here the violation of state law causes the deprivation of rights protected by the Constitution.'\" Draper v. Coombs, 792 F.2d 915, 921 (9th Cir.1986) (quoting Wirth v. Surles, 562 F.2d 319, 322 (4th Cir.1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed.2d 531 (1978)). In addition, the laws of Idaho guaranteeing timely presentation to a magistrate, e.g., Idaho Code § 19-615, 49-1407, 49-1409, 49-1411, \"place[] substantive limitations on official discretion\" and contain \"explicitly mandatory language\" sufficient to create a liberty interest protected by the Fourteenth Amendment and actionable under Section 1983. Mendoza v. Blodgett, 960 F.2d 1425, 1428-29 (9th Cir.1992), cert. denied, - U.S. -; 113 S.Ct. 1005, 122 L.Ed.2d 154 (1993); see also Haygood v. Younger, 769 F.2d 1350, 1355 (9th Cir.1985) (en banc), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986). . The Ninth Circuit’s law was also clearly established. It employed an \"exigent circumstances” test to evaluate compliance with Ger-stein. See supra note 13. . Because Gerstein contemplates a balancing of interests, an \"objectively reasonable” decision depends in part on the factual circumstances of the case. Mrs. Hallstrom, arrested for minor traffic violations (none of which ultimately were pursued), and held for obstruction of justice (either for failure to produce her traffic license or for failure to voluntarily comply with booking) was kept incommunicado for several days without" }, { "docid": "14574000", "title": "", "text": "PANNE R, District Judge. Plaintiff David Plumb brings this action for damages against county and state officials whose actions (or inaction) allegedly resulted in plaintiff being wrongly imprisoned for seventy days after the date on which he should have been released from custody. Magistrate Judge Ashmanskas filed two sets of Findings and Recommendations, one on October 7, 1993 and another on November 24, 1993. The Magistrate Judge recommended granting defendants’ motion for qualified immunity (#23) on grounds plaintiff had no liberty interest in credits for time served, and thus defendants Lewis, Toronto, Faatz, and Does 2 through 10 were qualifiedly immune from suit. The Magistrate Judge also recommended granting defendants’ motion (# 35) for summary judgment on the Fourteenth Amendment claims against defendants Prinslow and John Doe 1 because plaintiff was not deprived of any liberty interest. Finally, the Magistrate Judge recommended dismissing plaintiffs negligence claim pursuant to United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), because after dismissal of the federal claims the court would no longer have pendent jurisdiction over plaintiffs state law claims. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed. R.Civ.P. 72(b). Plaintiff has timely objected to certain parts of the Magistrate Judge’s report. When either party objects to any portion of the Magistrate Judge’s Findings and Recommendation, the district court must make a de novo review of that portion of the Magistrate Judge’s report. 28 U.S.C. § 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). The district court must also review de novo the legal principles in the entire report, not just the part objected to. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.1983). I decline to adopt the Magistrate Judge’s Findings and Recommendations. Instead, I dismiss the claims against defendants Abbott, Lewis, Toronto, Faatz, and Does 2 through 10, on grounds that while plaintiff was deprived of a liberty interest, and his unlawful detention" }, { "docid": "14574024", "title": "", "text": "known ...” (emphasis added). OAR 291-100-013(2)(e) provides that “[i]f county jail time credits are received by a Records Officer after the Parole Board has established a parole release date for a particular inmate, the Records Officer shall submit a corrected face sheet to the Parole Board.” To the extent plaintiff is asserting a claim for procedural due process case, the trial court will have to determine whether it was practical for defendants to implement additional procedures that would have reduced the risk of erroneous deprivation. See Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470 (9th Cir.1992) (additional pro cedures would have significantly reduced the risk of a prisoner being erroneously detained in Multnomah County Jail for 114 days). 2. Eighth Amendment: The facts alleged by plaintiff also state a claim under the Eighth Amendment. In Haygood v. Younger, 769 F.2d 1350 (9th Cir.1985) (en banc), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986), the Ninth Circuit held that confining a prisoner past his release date violates the Eighth Amendment. Defendant contends Haygood should be dismissed as an “aberration.” A district court cannot simply ignore a unanimous en banc Ninth Circuit decision absent express Supreme Court authority to the contrary. Until the Circuit advises otherwise, Haygood continues to be good law. It was followed in Alexander v. Perrill, 916 F.2d 1392 (9th Cir.1990), and the Third Circuit has applied the same principle in Sample v. Diecks, 885 F.2d 1099 (3d Cir.1989) and Moore v. Tartler, 986 F.2d 682 (3d Cir.1993). In each case, prison officials refused to release the inmate because they honestly but erroneously believed he had no right to be released. To find liability, the inmate must show that the official was aware of his complaint, but failed to aggressively investigate it, thus satisfying the deliberate indifference standard. The inmate is not required to show it was clearly established that he was entitled to be released. Rather, he need only have been clearly entitled to an investigation of his complaints. Alexander, 916 F.2d at 1397 n. 9. Whether the inmate was entitled to" }, { "docid": "22130758", "title": "", "text": "contests the district court’s factual findings that (1) his position as senior records keeper imposed upon him a duty to Sample to take steps regarding Sample’s release date, (2) that Diecks failed to take those steps, (3) and that his failure caused the deprivation of which Sample complains — Sample’s prolonged imprisonment. These findings are all essential to the district court’s conclusion that Diecks is liable under § 1983. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir.1988). Before discussing these factual issues, however, we must first examine the legal issue of whether, if there was a deprivation, it was of a right secured by the Constitution, in this case by the “cruel and unusual punishment” clause of the eighth amendment. A. Whether Sample’s detention beyond the expiration of his term violated the eighth amendment requires us to consider wheth er that detention was “punishment” and, if so, whether it was “cruel and unusual.” We conclude that it was both. 1. We think there can be no doubt that imprisonment beyond one’s term constitutes punishment within the meaning of the eighth amendment. Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 2570, 57 L.Ed.2d 522 (1978) (confinement in prison or isolation cell is form of punishment under eighth amendment); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir.1985) (en banc), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986). Indeed, confinement in a prison pursuant to a conviction but beyond the term of a sentence seems to us to be quintessentially punitive. Here, for example, the state, through its official agents, intended to confine, did confine, and intended to continue to punish Sample throughout his confinement, including the unwarranted portion of it. Admittedly, the unwarranted portion of Sample’s incarceration was based upon an error: Had Diecks known that Sample’s sentence was complete, the record suggests that Diecks would no longer have detained him. Although a mistaken basis for detention may have some bearing on whether that detention was “cruel and unusual,” see infra, a mistaken basis for imprisonment does not alter the punitive nature of" } ]

[ { "docid": "5534713", "title": "", "text": "However, the Hepatitis C Treatment Referral Checklist attached to the Guideline makes clear that if an individual satisfies any of the exclusion criteria — including the alcohol and drug use criterion — the individual cannot receive hepatitis C treatment, unless the individual satisfies other exceptions not here relevant. The defendants may well have genuinely believed, then, that they had no choice but to comply with the policy articulated in the Guideline. But we believe that a jury could also reasonably reach the contrary result, namely, that the defendants here did subjectively know of, and disregard an excessive risk to, plaintiffs health. This is true principally for three reasons: (1) every single one of plaintiffs treating physicians, including prison physicians, indicated to the defendants that prescribing Ribavirin to the plaintiff was the medically appropriate course of treatment; (2) there is conflicting evidence about whether or not the decision not to prescribe Ribavirin to the plaintiff was, in fact, medically justifiable; and (3) there is no evidence suggesting that the defendants took any step whatsoever to investigate — let alone verify— whether it would be medically appropriate to ignore the unanimous advice of Johnson’s treating physicians, including prison physicians, and apply the Guideline’s substance abuse policy in Johnson’s case. To begin with, we have previously held that a deliberate indifference claim can lie where prison officials deliberately ignore the medical recommendations of a prisoner’s treating physicians. See Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987) (“Prison officials are more than merely negligent if they deliberately defy the express instructions of a prisoner’s doctors.”). While admittedly the defendants in Gill were not medical personnel with responsibility for implementing various treatment policies, here, it is beyond cavil that all of plaintiffs treating physicians, including two prison physicians, expressly recommended that the plaintiff be prescribed Ribavirin. Indeed, the defendants conceded at oral argument that plaintiffs treating physicians put them on direct notice that Rebetron therapy was the medically appropriate course of treatment for plaintiffs hepatitis C regardless of what the Guideline implied. In addition, contrary to what the defendants contend, there is ample reason" } ]

[ { "docid": "22969760", "title": "", "text": "court observed that given the obviousness of the inmate’s condition, it was clear the case involved more than a “mere disagreement between the parties.” Id. at 1277 n. 7. We therefore allowed further discovery as to the doctor’s subjective state of mind in delaying both additional medical care and referral to a specialist. Finally, in Mata v. Saiz, 427 F.3d 745 (10th Cir.2005), we held that a prison health official who serves “ ‘solely ... as a gatekeeper for other medical personnel capable of treating the condition’ may be held liable under the deliberate indifference standard if she ‘delays or refuses to fulfill that gatekeeper role.’ ” Id. at 751 (quoting Sealock, 218 F.3d at 1211). We reiterated that the subjective component presents a high evidentiary hurdle to the plaintiffs: a prison official must know about and disregard a substantial risk of serious harm. Id. at 752. In applying these principles, we allowed a claim against a nurse who knew the inmate was suffering from severe chest pains yet “completely refused to assess or diagnose” the potential cardiac emergency in violation of prison medical protocols. Id. at 758; see id. at 755-59. However, we denied a claim against a different nurse who established “a good faith effort to diagnose and treat [the inmate’s] medical condition” despite failing to diagnose a heart attack. Id. at 761; see id. at 760-61. These cases show that the subjective component is not satisfied, absent an extraordinary degree of neglect, where a doctor merely exercises his considered medical judgment. Matters that traditionally fall within the scope of medical judgment are such decisions as whether to consult a specialist or undertake additional medical testing. See, e.g., Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir.1992) (noting that types of medication prescribed and referrals to specialists are generally matters of medical judgment). The Eighth Amendment’s prohibition on cruel and unusual punishment is not violated when a doctor simply resolves “the question whether additional diagnostic techniques or forms of treatment is indicated.” Estelle, 429 U.S. at 107, 97 S.Ct. 285. A claim is therefore actionable only in cases" }, { "docid": "14960594", "title": "", "text": "against Dr. Elyea. They claim that, while serving as medical director of IDOC, Dr. Elyea inaugurated a protocol for hepatitis C treatment that categorically required that all candidates for antiviral therapy — despite their particular genotype — have at least two years left on them sentence. This categorical rule, the plaintiffs submit, deprived them of necessary treatment that would have been effective. This rule was grounded, they further contend, in consideration of administrative convenience rather than medical effectiveness. Although the parties can point to no case that held squarely that such a policy was constitutional or unconstitutional, Dr. Elyea points to two cases that take note that two other states had the same or similar policies. See McKenna, 386 F.3d 432; Bender, 385 F.3d 1133. Notably, neither of these cases hold, or even suggest, that the policies mentioned were constitutionally acceptable. We believe that there was sufficient guidance that Dr. Elyea, or any other reasonable prison medical director, should have been on notice that such a policy was violative of the Eighth Amendment. At the outset, we note that the cases that Dr. Elyea claims supported his contemporaneous belief in the legality of his conduct do not hold that waiting periods for treatment of HCV infection are constitutional. Bender simply held that a treating general practitioner was not deliberately indifferent to the needs of an inmate for antiviral therapy when the physician had referred the inmate to, and was awaiting further recommendations from, a specialist. 385 F.3d at 1138. McKenna rejected an appeal from the denial of the qualified immunity defense on a motion to dismiss by medical and other prison officials responsible for the denial of antiviral therapy to an inmate with HCV. 386 F.3d at 437. Indeed, Dr. Elyea has not presented us with any case from any court in which a similar, categorical treatment policy has been upheld against a constitutional challenge. In contrast, at the time Dr. Elyea acted, several cases had acknowledged that deliberate indifference claims based on medical treatment require reference to the particularized circumstances of individual inmates. See, e.g., Rouse v. Plantier, 182" }, { "docid": "14960559", "title": "", "text": "RIPPLE, Circuit Judge. Edward Roe, Anthony Stasiak, Timothy Stephen and Jonathan Walker are current and former inmates of the Illinois Department of Corrections (“IDOC”) who were diagnosed with hepatitis C during or prior to their time in IDOC custody. After unsuccessful attempts to obtain certain medical services for their disease while incarcerated, they brought this action against Dr. Willard Elyea, the former Medical Director of IDOC. The plaintiffs alleged that the diagnostic and treatment protocols for IDOC inmates with hepatitis C displayed deliberate indifference to their serious medical needs and thus violated the constitutional prohibition on cruel and unusual punishment. They sought relief under 42 U.S.C. § 1983. After a jury awarded substantial compensatory and punitive damages to the plaintiffs, the defendants moved for judgment as a matter of law and, in the alternative, for remittitur of the award. The district court granted in part and denied in part the motion. The parties now cross-appeal. For the reasons set forth in this opinion, we affirm the judgment of the district court. I BACKGROUND A. Facts Each of the plaintiffs claims that, during his incarceration in IDOC, he was refused or delayed treatment for hepatitis C and that he suffered some further injury as a result. The plaintiffs contend that Dr. Elyea, the IDOC Medical Director from 2002-2007, knowingly instituted a protocol for the diagnosis and treatment of hepatitis C that fell below constitutionally acceptable standards of medical care for inmates. To facilitate an understanding of the specific claims, we first discuss the record evidence about the disease and the IDOC response to it and then discuss each plaintiffs particular medical situation. The only record evidence regarding the disease, as a general matter, comes from the Federal Bureau of Prison (“FBOP”) Clinical Practice Guidelines for the Prevention and Treatment of Viral Hepatitis (the “Guidelines”) and the testimony of Dr. Elyea himself. 1. Hepatitis C Diagnosis and Treatment Recommendations Hepatitis C is a disease caused by a virus known as HCV. It has the potential to affect liver functioning. The HCV virus has six genotypes, the first of which is the prevalent" }, { "docid": "18233189", "title": "", "text": "MEMORANDUM-DECISION and ORDER HURD, District Judge. I. INTRODUCTION Plaintiffs Robert Hilton (“Hilton”) and Louis Vasquez (“Vasquez”) bring suit against Lester N. Wright, M.D. (“Dr. Wright”), Associate Commissioner/Chief Medical Officer for the New York State Department of Correctional Services (“DOCS”), and DOCS itself (collectively referred to as “defendants”). Both Hilton and Vasquez have Hepatitis C and are inmates under defendants’ care and custody; they claim that defendants refused to administer necessary treatment for their Hepatitis C because they had not completed a DOCS-sponsored substance abuse program. Plaintiffs assert that defendants’ failure to administer treatment was tantamount to a deprivation of their right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution. They filed suit against defendants pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983; the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132; and Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794, seeking injunctive and declaratory relief, as well as compensatory and punitive damages, based on defendants’ failure to provide combination treatment for their Hepatitis C. Plaintiffs move to certify the class pursuant to Rule 23 of the Federal Rules of Civil Procedure. Defendants oppose and cross- move for dismissal. They argue that because the prior substance abuse policy has been rescinded and plaintiffs are currently receiving the necessary treatment, plaintiffs’ equitable claims should be dismissed as moot. Plaintiffs oppose. Oral argument was heard on November 10, 2005, in Utica, New York. Decision was reserved. II. FACTS Hilton and Vasquez are inmates who suffer from Hepatitis C and are under defendants’ care and custody. They were identified by their treating physicians as patients in need of treatment for this progressive disease— specifically, combination antiviral therapy that is currently recognized as the standard treatment for Hepatitis C. Despite being repeatedly recommended for treatment by their attending physicians, defendants denied plaintiffs the standard combination treatment for their Hepatitis C because of DOCS’ Hepatitis C Primary Care Practice Guideline (“Guideline”). Pursuant to the Guideline, when an inmate diagnosed with Hepatitis C has admitted to using" }, { "docid": "12203361", "title": "", "text": "not responsible for his medical care. Instead, all treatment was to be handled by Cermak Health & Hospitals System, which is a medical facility separate from the Jail itself. But the constitutional duty under the Eighth and Fourteenth Amendments to provide adequate health care rests on the custodian. See Rice, 675 F.3d at 664-65. As the district court correctly noted, a government entity “cannot shield itself from § 1983 liability by contracting out its duty to provide medical services.” King, 680 F.3d at 1020; cf. Estelle, 429 U.S. at 103, 97 S.Ct. 285 (the government has “obligation to provide medical care for those whom it is punishing by incarceration”). There is also a close relationship between the Jail and Cermak. The Cermak facilities are physically located within the Jail, and Jail personnel are responsible for delivering patients to Cermak for care. Even if the care Daniel received at Cer-mak was inadequate, Daniel has offered evidence that the Sheriffs Office exacerbated the problems by failing to communicate with Cermak and failing to deliver Daniel to his appointments. The Sheriffs Department is therefore a proper defendant. Sheriff Dart also argues that he cannot be liable in his personal capacity. He points out that there is no vicarious liability for supervisory officials under § 1983. This is correct but incomplete. The sheriff can be directly liable for Daniel’s injury. If a senior jail or prison official, including a person with final policymaking power, is “aware of a systemic lapse in enforcement of a policy critical to ensuring inmate safety, his failure to enforce the policy could violate the Eighth Amendment.” Steidl v. Gramley, 151 F.3d 739, 741 (7th Cir. 1998) (quotation marks omitted). Similarly, if a supervisor designed or is aware of the institution’s “deliberately indifferent policy that caused a constitutional injury, then individual liability might flow from that act.” Armstrong v. Squadrito, 152 F.3d 564, 581 (7th Cir. 1998). The Department of Justice Report, along with the later Agreed Order incorporating the investigation’s findings and the 2010 Monitor Report detailing the Jail’s progress, provides substantial evidence that Sheriff Dart had notice of" }, { "docid": "14960604", "title": "", "text": "treatment for HCV infection categorically based on the expected length of their continued incarceration in an IDOC facility. In addition to mandating that inmates have one year of incarceration left for a treatment regimen to begin, the policy required an additional year to allow for enzyme level checks six months apart and an additional six months to “allow the vendor ample time for” some unspecified “workup” prior to the biopsy. R.110 at 127 (testimony of Dr. Elyea). IDOC justified this policy because the Guidelines note that an interrupted course of treatment may pose further health risks and because, with respect to some (but not all) genotypes, forty-eight weeks was the recommended course of treatment. According to Dr. Elyea, IDOC adopted the policy because it wanted to keep its protocols “consistent for all of the people who had hepatitis C.” Id. at 113. The failure to consider an individual inmate’s condition in making treatment decisions is, as we already have concluded, precisely the kind of conduct that constitutes a “substantial departure from aceept ed professional judgment, practice, or standards, [such] as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Sain, 512 F.3d at 895 (internal quotation marks omitted). Indeed, at trial, Dr. Elyea confirmed his deposition testimony that, “[a]t the time we set this up, there may not have been any real medical reason” for the policy of presuming a forty-eight-week treatment period for all inmates, regardless of genotype, “other than to keep it simple for folks.” R.110 at 123. Although administrative convenience and cost may be, in appropriate circumstances, permissible factors for correctional systems to consider in making treatment decisions, the Constitution is violated when they are considered to the exclusion of reasonable medical judgment about inmate health. See Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir.2006) (“The cost of treatment alternatives is a factor in determining what constitutes adequate, minimum-level medical care, but medical personnel cannot simply resort to an easier course of treatment that they know is ineffective.” (citations omitted)). Given Dr. Elyea’s own testimony, this is simply not" }, { "docid": "14960611", "title": "", "text": "years following, at least minimally sufficient to support the jury’s verdict and compensatory damages award. See Naeem v. McKesson Drug Co., 444 F.3d 593, 605 (7th Cir.2006) (noting the standard of review). The plaintiffs, and Mr. Roe specifically, proceeded precariously in this regard by failing to introduce their own medical expert, who might have testified directly to the medical issues involved in the causation analysis. Instead, the plaintiffs relied on the adverse testimony of Dr. Elyea himself and on the Guidelines. Although this way of proceeding was a risky trial strategy when the condition at issue — hepatitis C — was outside the common experience of lay jurors, we must conclude that, in this case, the evidence recounted above was minimally sufficient to allow a reasonable juror to conclude that an injury attributable to the policy had been established by Mr. Roe. Dr. Elyea did produce contrary evidence on the issue of whether any of the plaintiffs, including Mr. Roe, suffered any injury as a result of IDOC treatment policy. Dr. Elyea himself testified, consistent with the Guidelines, that the normal course of HCV infection would take twenty or more years to result in significant liver disease, if it does so at all, and remains “asymptomatic” unless “the disease is at its end stages.” R.110 at 94, 95. At trial, counsel for Dr. Elyea contended that the lack of any “short-term impact” of the disease justified, in all cases covered by the policy, denial of further testing and consideration for treatment. Id. at 190-91. The force of these general statements about the normal progression of the disease, however, did not require the jury to find that, in the case of Mr. Roe, he was not injured by the failure of IDOC to provide treatment. In fact, these general statements are particularly unpersuasive when the prison’s own medical records indicate that Mr. Roe believed he had been infected since the 1970s; it is unsurprising, therefore, that he had advanced liver disease in 2003. The “short-term” for Mr. Roe, it seems, was actually the long-term consequence of a decades-old infection. The State" }, { "docid": "18084341", "title": "", "text": "of professional judgment, that is, no minimally competent professional would have so responded under those circumstances.”). By contrast, evidence that some medical professionals would have chosen a different course of treatment is insufficient to make out a constitutional claim. Steele v. Choi, 82 F.3d 175, 179 (7th Cir. 1996). Even among the medical community, the permissible bounds of competent medical judgment are' not always clear, particularly because “it is implicit in the professional judgment standard itself ... that inmate medical care decisions must be fact-based .with respect to the particular inmate, the severity and stage of his condition, the likelihood and imminence of further harm and the efficacy of available treatments.” Roe v. Elyea, 631 F.3d 843, 859 (7th Cir. 2011). So it can be challenging to draw a line between an acceptable difference of opinion (especially because even admitted medical malpractice does not automatically give rise to a constitutional violation), and an action that reflects sub-minimal competence and crosses the threshold into deliberate indifference. One hint of such a departure is when a doctor refuses to take instructions from a specialist. Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011); Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999). Another is when he or she fails to follow an existing protocol. “While published requirements for health care do not create constitutional rights, such protocols certainly provide circumstantial evidence that a prison health care gatekeeper knew of a substantial risk of serious harm.” Mata v. Saiz, 427 F.3d 745, 757 (10th Cir. 2005). Another situation that might establish a departure from minimally competent medi cal judgment is where a prison official persists in a course of treatment known to be ineffective. Walker; 233 F.3d at 499 (citations omitted). For example, if knowing a patient faces a serious risk of appendicitis, the prison official gives the patient an aspirin and sends him back to his cell, a jury could find deliberate indifference even though the prisoner received some treatment. Sherrod, 223 F.3d at 612; see also Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) (continuing to treat" }, { "docid": "14960603", "title": "", "text": "that standard. Specifically, as the FBOP Guidelines make clear, at least for some patients, HCV infection is a serious medical condition that can lead to irreversible physical damage and even life-threatening situations. Mr. Roe’s own medical records show not only that he had been diagnosed with HCV infection, but that his enzyme levels were repeatedly twice normal over a period of several years. Given his particular history, the FBOP Guidelines counseled, at minimum, biopsy of the liver and consideration for antiviral therapy. The recommendations set forth by the federal prison system, read together with Mr. Roe’s medical history and testimony regarding his symptoms, are sufficient evidence to permit the jury to conclude that Mr. Roe’s HCV infection amounted to a serious medical need. Second, Mr. Roe presented sufficient evidence from which a jury could conclude that Dr. Elyea acted with a sufficiently culpable state of mind in setting the IDOC policy that resulted in a denial of the treatment recommended under the Guidelines to Mr. Roe. Under that policy, inmates were denied further testing and treatment for HCV infection categorically based on the expected length of their continued incarceration in an IDOC facility. In addition to mandating that inmates have one year of incarceration left for a treatment regimen to begin, the policy required an additional year to allow for enzyme level checks six months apart and an additional six months to “allow the vendor ample time for” some unspecified “workup” prior to the biopsy. R.110 at 127 (testimony of Dr. Elyea). IDOC justified this policy because the Guidelines note that an interrupted course of treatment may pose further health risks and because, with respect to some (but not all) genotypes, forty-eight weeks was the recommended course of treatment. According to Dr. Elyea, IDOC adopted the policy because it wanted to keep its protocols “consistent for all of the people who had hepatitis C.” Id. at 113. The failure to consider an individual inmate’s condition in making treatment decisions is, as we already have concluded, precisely the kind of conduct that constitutes a “substantial departure from aceept ed professional judgment," }, { "docid": "18233207", "title": "", "text": "an ASAT/RSAT program. Circumstances surrounding Dr. Wright’s repudiation of the requirement, and his inability to bind future commissioners of DOCS, demonstrate that the change in policy did not render this case moot. Defendants have not demonstrated that there is “no reasonable expectation” that the ASAT/RSAT requirement will be reinstated; thus, it is not clear that the defendants’ conduct will not recur. 2. Interim Relief Even if defendants had demonstrated that there is no reasonable expectation that the challenged conduct will recur, defendants’ mootness claim would fail because they have not shown that “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation,” a finding that is required in order to succeed on their mootness argument. Tsombanidis, 352 F.3d at 574. Although both Hilton and Vasquez are now receiving the combination treatment, it does not follow that all Hepatitis C-infected inmates medically eligible for the treatment will in fact receive the treatment. As previously noted, there are over 9,000 inmates in DOCS custody that have been diagnosed with Hepatitis C—and only two percent of them are currently receiving the standard combination treatment. While not all inmates are medically eligible for the combination treatment (approximately 6-12% of the infected inmates currently in DOCS custody are eligible), many inmates that are eligible were denied treatment solely because of the prior ASAT/RSAT requirement. Defendants have repudiated the mandatory aspect of the ASAT/RSAT requirement, and Dr. Wright has ordered DOCS medical personnel to “review any Hepatitis C patients for whom [ASAT/RSAT] issues may have been the contraindication for treatment and submit/resubmit Request for Treatment e-forms for those who medically qualify for treatment according to the revised care guideline.” (Wright e-mail.) But, review does not necessarily translate into treatment—while some inmates will invariably receive the treatment based on Dr. Wright’s directive, it is not clear that all the inmates that were denied the treatment based on their failure to complete an ASAT/RSAT program will now receive the treatment. Defendants have given no assurance that each member of the class that plaintiffs seek to certify—all Hepatitis C-infected prisoners in defendants’ custody, including" }, { "docid": "18233194", "title": "", "text": "received treatment by March 2005, he filed a grievance with the Inmate Grievance Resolution Committee, which unanimously recommended that his grievance be granted. However, at his next doctor’s appointment, Vasquez was still not given any medication; he was later informed by his doctor that Dr. Wright had suspended the doctor’s request that he receive treatment because Dr. Wright couldn’t confirm that he had completed the ASAT/RSAT requirement. All of his appeals for treatment were denied. Vasquez then wrote to Dr. Wright, questioning why he was required to participate in an ASAT/RSAT program in order to receive treatment for his Hepatitis C. He informed Dr. Wright that in 1991, while he was in custody, he completed a three-month prison-run drug treatment program, and had been drug-free for 25 years. Dr. Wright responded that the 1991 program was insufficient, and reiterated that Vasquez would not receive treatment until he fulfilled the ASAT/ RSAT requirement. Only when he was joined as a plaintiff in this action did Dr. Wright allow Vasquez to receive the combination treatment for his Hepatitis C. On October 13, 2005, Dr. Wright rescinded the ASAT/RSAT requirement from the Guideline; the new provision (“Revised Guideline”) now reads: “Those who have a substance abuse history are strongly encouraged to complete an ASAT/RSAT program since dealing with alcohol or substance use issues is an essential part of their Hepatitis C treatment and protection program.” (Docket No. 17, Defs.’ Mem. Ex. B at 4.) He forwarded the Revised Guideline by e-mail (“Wright e-mail”) to medical officials throughout DOCS on October 18, 2005, instructing them to “review any Hepatitis C patients for whom [ASAT/RSAT] issues may have been the contraindication for treatment and submit/resubmit Request for Treatment e-forms for those who medically qualify for treatment according to the revised care guideline.” (Defs.’ Mem. Ex. C.) Additionally, Dr. Wright submitted an affidavit (“Wright Decl”) stating that he has “no intention of re-instituting the repealed ASAT/ RSAT requirement.” (Defs.’ Mem. Decl. ¶ 9.) Prior to Dr. Wright’s revision, DOCS’ ASAT/RSAT policy had been dealt severe judicial blows by the New York state and federal courts. In" }, { "docid": "23596264", "title": "", "text": "Cir.2011). A medical condition is objectively serious if a physician has diagnosed it as requiring treatment, or the need for treatment would be obvious to a layperson. Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir.2009). Second, Mr. Pyles had to demonstrate that Dr. Fahim knew about his condition and the risk it posed, but disregarded that risk. Arnett, 658 F.3d at 751. Something more than negligence or even malpractice is required. Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.2008). A prisoner may establish deliberate indifference by demonstrating that the treatment he received was “blatantly inappropriate.” Greeno v. Daley, 414 F.3d 645, 654 (7th Cir.2005) (quoting Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir.1996)). Making that showing is not easy: “A medical professional is entitled to deference in treatment decisions unless ‘no minimally competent professional would have so responded under those circumstances.’ ” Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir.2008) (quoting Collignon v. Milwaukee Cnty., 163 F.3d 982, 988 (7th Cir.1998)). Disagreement between a prisoner and his doctor, or even between two medical professionals, about the proper course of treatment generally is insufficient, by itself, to establish an Eighth Amendment violation. Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir.2006). The federal courts will not interfere with a doctor’s decision to pursue a particular course of treatment unless that decision represents so significant a departure from accepted professional standards or practices that it calls into question whether the doctor actually was exercising his professional judgment. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.2011); Sain, 512 F.3d at 895. Finally, with regard to Mr. Pyles’s claim against Wexford, because § 1983 does not permit liability to rest on the doctrine of respondeat superior, Maniscalco v. Simon, 712 F.3d 1139, 1145-46 (7th Cir.2013), Mr. Pyles was required to show that a Wexford policy was the “direct cause” of or “moving force” behind his constitutional injury. Minix v. Canarecci, 597 F.3d 824, 832 (7th Cir.2010). B. With those standards in mind, we turn first to Mr. Pyles’s conditions-of-confinement claim against Warden Gaetz. Mr. Pyles’s complaint alleges that Warden" }, { "docid": "14960595", "title": "", "text": "outset, we note that the cases that Dr. Elyea claims supported his contemporaneous belief in the legality of his conduct do not hold that waiting periods for treatment of HCV infection are constitutional. Bender simply held that a treating general practitioner was not deliberately indifferent to the needs of an inmate for antiviral therapy when the physician had referred the inmate to, and was awaiting further recommendations from, a specialist. 385 F.3d at 1138. McKenna rejected an appeal from the denial of the qualified immunity defense on a motion to dismiss by medical and other prison officials responsible for the denial of antiviral therapy to an inmate with HCV. 386 F.3d at 437. Indeed, Dr. Elyea has not presented us with any case from any court in which a similar, categorical treatment policy has been upheld against a constitutional challenge. In contrast, at the time Dr. Elyea acted, several cases had acknowledged that deliberate indifference claims based on medical treatment require reference to the particularized circumstances of individual inmates. See, e.g., Rouse v. Plantier, 182 F.3d 192, 199 (3d Cir.1999) (remanding a class action to the district court for sub-classifications among a “medically diverse group” of individuals with different stages of diabetes, because alleged violations of the Eighth Amendment “obviously var[y] depending on the medical needs of the particular prisoner”); Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 & n. 32 (3d Cir.1987) (noting that, by virtue of a blanket policy of denying elective abortions and failing to consider factors relevant to each particular inmate “the County denies to a class of inmates the type of individualized treatment normally associated with the provision of adequate medical care” (emphasis added)). Indeed, it is implicit in the professional judgment standard itself, which long predates the actions relevant to this case, that inmate medical care decisions must be fact-based with respect to the particular inmate, the severity and stage of his condition, the likelihood and imminence of further harm and the efficacy of available treatments. See Collignon v. Mil waukee Cnty., 163 F.3d 982, 989 (7th Cir.1998) (“A plaintiff can" }, { "docid": "23234188", "title": "", "text": "insufficient to allege the violation of his First Amendment rights. Cf. Smith v. Maschner, 899 F.2d 940, 947 (10th Cir.1990) (noting that because a prisoner must ordinarily first file a grievance in order to ultimately gain access to courts, punishing him for actually filing grievances may state a First Amendment claim). Here, there is no indication that CDOC officials retaliated against him for filing the grievances. Moreover, CDOC officials did eventually provide Mr. Gwinn with an opportunity to challenge the classification at the July 20, 2000, hearing. As we observed in Chambers, until we issued that opinion, the right to contest such a classification was not clearly established. See 205 F.3d at 1244. Accordingly, the district court properly rejected Mr. Gwinn’s First Amendment claim as well. Finally, Mr. Gwinn argues that CDOC officials violated his Fourteenth Amendment equal protection rights because he was treated differently than other defendants convicted of robbery in that he was required to submit to a treatment program for sex offenders or lose his good time credits. As the district court noted, absent an allegation of a suspect classification, our review of prison officials’ differing treatment of various inmates is quite deferential: in order to withstand an equal protection challenge, those classifications must be reasonably related to a legitimate penological purpose. See Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir.1994). Here, prison officials found that Mr. Gwinn, unlike other robbery defendants, had committed a sexual assault. Thus the requirement that he participate in a treatment program had a rational relationship to rehabilitative objectives. See id. (“Not only might the [Department of Corrections] classify inmates differently because of slight differences in their histories, but they also might classify inmates differently because some still seem to present more risk of future misconduct than others.”); Martinez v. Flowers, 164 F.3d 1257, 1261 (10th Cir.1998) (upholding classification of violent offenders); see generally Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir.1995) (applying the rational basis standard to the treatment of a prisoner and stating that “[w]hen the plaintiff is not a member of a protected class and does not" }, { "docid": "14960598", "title": "", "text": "doubt a useful tool and, as a general matter, might assist in assessing treatment options with respect to a disease that is slow-progressing and highly dangerous or fatal, over time, in only a small percentage of infected persons. See Trial Ex. 3 at 41-42 (directing treating physicians to weigh relevant factors, including that only 10-15% of infected persons will develop complications of long-term liver disease, in determining the appropriateness of treatment). With respect to an individual case, however, prison officials still must make a determination that application of the protocols result in adequate medical care. Cf. Johnson v. Wright, 412 F.3d 398, 406 (2d Cir.2005) (holding that an inmate with HCV had produced sufficient evidence to survive summary judgment on a deliberate indifference claim, in part, by demonstrating that officials were “reflexively relying on the medical soundness of’ a policy “when they had been put on notice that the medically appropriate decision could be, instead, to depart from” that policy). This basic legal obligation to provide care adequate to a particular inmate’s medical circumstances should have been clear to reasonable physicians with the responsibility for creating inmate 'healthcare policy in 2003. There was evidence in the record that permitted the jury to conclude that Dr. Elyea in fact implemented not the federal policy, but a variation of it. Under that variation, all genotypes of the disease were handled in the same way. Although certain genotypes, such as the one that afflicted Mr. Roe, could be treated in a relatively short period of time, patients with these genotypes were treated in the same manner as those requiring a longer period, and therefore a longer expected term of incarceration. There was also record evidence that permitted the jury to conclude that, in formulating the Illinois policy, Dr. Elyea was motivated by administrative convenience rather than patient welfare. According to Dr. Elyea’s deposition testimony, confirmed by his testimony at trial: “At the time we set this up, there may not have been any real medical reason other than to keep it simple for folks.” R.110 at 123 (emphasis added). Dr. Elyea did testify" }, { "docid": "14960597", "title": "", "text": "show that the professional disregarded the need only if the professional’s subjective response was so inadequate that it demonstrated an absence of professional judgment, that is, that no minimally competent professional would have so responded under those circumstances.” (emphasis added)). We emphasize, however, that the necessity of individualized treatment does not mean that the use of treatment protocols and guidelines is generally unconstitutional. Indeed, in the ordinary course, such standard practices implement a professional discipline that in turn facilitates appropriate and quality care within large and administratively complex institutional settings, including correctional systems. Often, as is the case in Illinois, outside contractors provide day-to-day care, and a carefully crafted protocol can ensure the maintenance of legally and medically acceptable standards of care throughout the system. In the prison context, however, such protocols must ensure that prison officials fulfill their responsibility to provide constitutionally adequate care to each individual inmate with reference to his particularized medical need. Here, the FBOP Guidelines employed by Dr. Elyea as a guide in formulating and implementing IDOC’s policy were no doubt a useful tool and, as a general matter, might assist in assessing treatment options with respect to a disease that is slow-progressing and highly dangerous or fatal, over time, in only a small percentage of infected persons. See Trial Ex. 3 at 41-42 (directing treating physicians to weigh relevant factors, including that only 10-15% of infected persons will develop complications of long-term liver disease, in determining the appropriateness of treatment). With respect to an individual case, however, prison officials still must make a determination that application of the protocols result in adequate medical care. Cf. Johnson v. Wright, 412 F.3d 398, 406 (2d Cir.2005) (holding that an inmate with HCV had produced sufficient evidence to survive summary judgment on a deliberate indifference claim, in part, by demonstrating that officials were “reflexively relying on the medical soundness of’ a policy “when they had been put on notice that the medically appropriate decision could be, instead, to depart from” that policy). This basic legal obligation to provide care adequate to a particular inmate’s medical circumstances should" }, { "docid": "14960596", "title": "", "text": "F.3d 192, 199 (3d Cir.1999) (remanding a class action to the district court for sub-classifications among a “medically diverse group” of individuals with different stages of diabetes, because alleged violations of the Eighth Amendment “obviously var[y] depending on the medical needs of the particular prisoner”); Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 & n. 32 (3d Cir.1987) (noting that, by virtue of a blanket policy of denying elective abortions and failing to consider factors relevant to each particular inmate “the County denies to a class of inmates the type of individualized treatment normally associated with the provision of adequate medical care” (emphasis added)). Indeed, it is implicit in the professional judgment standard itself, which long predates the actions relevant to this case, that inmate medical care decisions must be fact-based with respect to the particular inmate, the severity and stage of his condition, the likelihood and imminence of further harm and the efficacy of available treatments. See Collignon v. Mil waukee Cnty., 163 F.3d 982, 989 (7th Cir.1998) (“A plaintiff can show that the professional disregarded the need only if the professional’s subjective response was so inadequate that it demonstrated an absence of professional judgment, that is, that no minimally competent professional would have so responded under those circumstances.” (emphasis added)). We emphasize, however, that the necessity of individualized treatment does not mean that the use of treatment protocols and guidelines is generally unconstitutional. Indeed, in the ordinary course, such standard practices implement a professional discipline that in turn facilitates appropriate and quality care within large and administratively complex institutional settings, including correctional systems. Often, as is the case in Illinois, outside contractors provide day-to-day care, and a carefully crafted protocol can ensure the maintenance of legally and medically acceptable standards of care throughout the system. In the prison context, however, such protocols must ensure that prison officials fulfill their responsibility to provide constitutionally adequate care to each individual inmate with reference to his particularized medical need. Here, the FBOP Guidelines employed by Dr. Elyea as a guide in formulating and implementing IDOC’s policy were no" }, { "docid": "22969759", "title": "", "text": "an inference he knew about the chest pains yet intentionally disregarded his practice of summoning an ambulance. Id. A second recent case also involved a claim of inadequate medical care. In Oxendine v. Kaplan, 241 F.3d 1272 (10th Cir.2001), we observed that “a prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation,” id. at 1277 n. 7 (internal citations and quotation marks omitted), absent evidence the prison official “knew about and disregarded a ‘substantial risk of harm’ to [the prisoner’s] health or safety.” Id. at 1277. In Oxendine, the prison doctor repaired a severed finger but failed to diagnose the onset of gangrene. In finding the evidence sufficient to satisfy the subjective component and defeat a summary judgment motion, we noted the obviousness of the problem: (1) the repaired tissue appeared black and was disintegrating, (2) the inmate repeatedly informed the doctor that his finger was not healing, and (3) the doctor himself recognized and noted these symptoms but ignored them. Id. at 1279-80. The court observed that given the obviousness of the inmate’s condition, it was clear the case involved more than a “mere disagreement between the parties.” Id. at 1277 n. 7. We therefore allowed further discovery as to the doctor’s subjective state of mind in delaying both additional medical care and referral to a specialist. Finally, in Mata v. Saiz, 427 F.3d 745 (10th Cir.2005), we held that a prison health official who serves “ ‘solely ... as a gatekeeper for other medical personnel capable of treating the condition’ may be held liable under the deliberate indifference standard if she ‘delays or refuses to fulfill that gatekeeper role.’ ” Id. at 751 (quoting Sealock, 218 F.3d at 1211). We reiterated that the subjective component presents a high evidentiary hurdle to the plaintiffs: a prison official must know about and disregard a substantial risk of serious harm. Id. at 752. In applying these principles, we allowed a claim against a nurse who knew the inmate was suffering from severe chest pains yet “completely refused to assess or diagnose”" }, { "docid": "18084342", "title": "", "text": "refuses to take instructions from a specialist. Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011); Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999). Another is when he or she fails to follow an existing protocol. “While published requirements for health care do not create constitutional rights, such protocols certainly provide circumstantial evidence that a prison health care gatekeeper knew of a substantial risk of serious harm.” Mata v. Saiz, 427 F.3d 745, 757 (10th Cir. 2005). Another situation that might establish a departure from minimally competent medi cal judgment is where a prison official persists in a course of treatment known to be ineffective. Walker; 233 F.3d at 499 (citations omitted). For example, if knowing a patient faces a serious risk of appendicitis, the prison official gives the patient an aspirin and sends him back to his cell, a jury could find deliberate indifference even though the prisoner received some treatment. Sherrod, 223 F.3d at 612; see also Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) (continuing to treat severe vomiting with antacids over three years created material fact issue of deliberate indifference); Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (holding Eighth Amendment claim may exist if medical treatment is so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate the prisoner’s condition); Kelley v. McGinnis, 899 F.2d 612, 616-17 (7th Cir. 1990) (per curiam). If a prison doctor chooses an “easier and less efficacious treatment” without exercising professional judgment, such a decision can also constitute deliberate indifference. Estelle, 429 U.S. at 104 n.10, 97 S.Ct. 285; Conley v. Birch, 796 F.3d 742, 747 (7th Cir. 2015) (material fact issue whether provision of only painkillers and ice to an inmate suffering from suspected fracture constituted deliberate indifference). While the cost of treatment is a factor in determining what constitutes adequate, minimum-level care, medical personnel cannot simply resort to an easier course of treatment that they know is ineffective. Johnson, 433 F.3d at 1013; Roe, 631 F.3d at 863 (although administrative convenience and cost may be permissible factors for correctional" }, { "docid": "14960628", "title": "", "text": "facilities should ordinarily not be started on antiviral therapy.” Trial Ex. 3 at 41. In Dr. Elyea's view, because a detainee might remain in that system for two years without entitlement to treatment, the Guidelines require nothing more for inmates actually sentenced to terms shorter than two years. The quoted section continues, however, to explain that a \"[treatment decision!] should be deferred until the inmate is sentenced and redesignated or released,\" id. (emphasis added). This context makes plain that the Guidelines are drawing a distinction between inmates whose future term is wholly uncertain and those who will serve finite terms of incarceration. The point is made even clearer by the following section of the Guidelines, which provides direction in the case of \"Long-term (sentenced) inmates.” Id. We, like the district court, are not persuaded that Dr. Elyea can assert compliance with the Guidelines as conclusive evidence that his conduct met or exceeded the constitutional minimum standard of care under these circumstances. . In his testimony, Dr. Elyea did state that treatment for all inmates with hepatitis would be impossible, estimating the costs at some $300-400 million without further explanation. See R.110 at 135. If IDOC's financial constraints limit the care available, Dr. Elyea might well be justified in triaging the cases and deciding eligibility for treatment. However, in order for that triage not to run afoul of the Eighth Amendment, the decision about who should have priority for care must itself be based on medical judgment. The jury was entitled to conclude, on the record before it, that the categorical delay period was not a medical judgment. . Specifically, Mr. Roe was reincarcerated for a felony charge of driving under the influence in 2007, which necessarily means that he had consumed alcohol to the point of intoxication, at least on the occasion of that offense. . See Henderson v. Sheahan, 196 F.3d 839, 848 (7th Cir.1999) (noting that, under tort principles applicable in § 1983 actions, a plaintiff must show that “he has suffered an 'actual' present injury and that there is a causal connection between that injury and the" } ]

[ { "docid": "22607336", "title": "", "text": "TROTT, Circuit Judge: Rosalina Silaya (“Rosalina”) seeks review of the BIA’s decision denying her application for asylum, withholding of removal (“withholding”), and protection under the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Because the record compels a finding that Rosalina was subjected to past persecution on account of imputed political opinion, we grant the petition with respect to the asylum claim and remand to the BIA. I BACKGROUND Rosalina is a native and citizen of the Philippines. She entered the United States in May of 1985 as a non-immigrant visitor. When she remained beyond the visa’s authorized stay, she was charged with and conceded removability. Subsequently, Rosalina submitted an application for asylum, withholding, and relief under CAT. Rosalina was born in San Mateo Sur, Philippines. Her father Estaqiou was a World War II veteran who served under General Douglas McArthur. The people of San Mateo Sur knew he was a veteran because it was a small town, and he received a pension from the government. While she was growing up, Rosalina heard stories about the New People’s Army (“NPA”). The NPA “is a violent, revolutionary Communist group which actively opposes the Philippine government” and “has a well-documented history of political violence.” Borja v. INS, 175 F.3d 732, 734 (9th Cir.1999) (en banc). Rosalina was told that the NPA were “really violent and aggressive people and that there are many members in [her] town.” Rosalina testified that NPA members came to her house often and asked for food and money. She said her father gave them what they asked for because he knew that the NPA was against the government, and, because he was a World War II veteran, the NPA was against him too. According to Rosalina’s testimony, her father feared that if he didn’t give the NPA food or money, they would come back and hurt him and his family. Rosalina said her family was scared of the NPA because her “father supported the government and because he was a military veteran.” She said also that when the NPA came to the house" } ]

[ { "docid": "17259351", "title": "", "text": "OPINION MURGUIA, Circuit Judge: Saul Martinez, a citizen of Guatemala, filed an action in the United States District Court for the Central District of California alleging that the Board of Immigration Appeals’ (“BIA”) decision to deny his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) was arbitrary and capricious and therefore in violation of the Administrative Procedure Act. The district court dismissed the complaint for lack of jurisdiction. We affirm. I.Background and Procedural History The following facts are taken from Martinez’s complaint. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005) (in reviewing an order granting a motion to dismiss, we accept “all factual allegations in the complaint as true”). In 1992, Martinez filed a false application for asylum and withholding of removal based on his alleged political opinion. An asylum officer denied this application. In 1996, at a merits hearing before an Immigration Judge (“IJ”), Martinez admitted that the initial application was false, but submitted a new application for asylum and withholding of removal based on his sexual orientation. The IJ found that Martinez lacked credibility due to his initial false application and denied the second application. The BIA affirmed. In 2003, this Court granted Martinez’s petition for review because the BIA failed to explain a legitimate and cogent basis for the adverse credibility finding. Martinez v. INS, 72 Fed.Appx. 564 (9th Cir.2003). On remand, the BIA again affirmed the IJ, but gave a more detailed explanation of its reasoning. The BIA also declined to reopen Martinez’s case based on new CAT arguments because the Board determined that Martinez had failed to establish that he would be tortured if he was returned to Guatemala. Martinez petitioned this Court for a second time but was unsuccessful and his petition was denied on March 3, 2009. Martinez v. Holder, 557 F.3d 1059 (9th Cir.2009). Martinez then filed this complaint in October 2009, alleging that the BIA treated Martinez differently than similarly situated individuals that had filed false asylum applications. According to the complaint, this was an arbitrary and capricious agency action in violation of the" }, { "docid": "13828433", "title": "", "text": "S.Ct. 719). When the board denies relief on a particular ground, we review only that ground.. See Daneshvar, 355 F.3d at 626; Hernandez-Ortiz v. INS, 777 F.2d 509, 517 (9th Cir. 1985) (“When the Board restricts its decision [refusing to reopen] to whether the alien has established a prima facie case it is only this basis for its decision that we review.”); see also Fed. Power Comm’n v. Texaco Inc., 417 U.S. 380, 397, 94 S.Ct. 2315, 41 L.Ed.2d 141 (1974) (“[A]n agency’s order must be upheld, if at all, on the same basis articulated in the order by the agency itself.” (internal quotation marks omitted)). The BIA denied Trujillo Diaz’s motion to reopen on the ground that she failed tó establish a prima facie case for any of the relief she sought: asylum, withholding of removal under the INA, or withholding of removal under the Convention Against Torture. As explained below, we find that the BIA abused its discretion in reaching this conclusion. i. The BIA abused its discretion when it found that Trujillo Diaz .failed to present prima facie evidence that she would be singled out individually for persecution on the basis of a protected ground. The BIA correctly noted that Trujillo Diaz’s motion to reopen was required to be “supported by evidence that ... demonstrates prima facie eligibility for reliefi” To present a prima facie case for relief, the movant need not make a “conclusive showing” that she will ultimately obtain relief. Vota v. Gonzales, 243 Fed.Appx. 930, 947 (6th Cir. 2007) (quoting In re S-V-, 22 I. & N. Dec. 1306, 1307 (BIA 2000)). But she must present evidence that “reveals a reasonable likelihood that the statutory requirements for - relief have been satisfied.” Alizoti, 477 F.3d at 452 (quoting In re S-V-, 22 I & N Dec. at 1308). ■ For asylum and withholding of removal, one of the statutory requirements for eligibility is that the applicant show a “well-founded fear óf persecution” (for asylum) or that the' applicant’s “life or freedom would be threatened” (for withholding of removal) on account of a protected ground—“race," }, { "docid": "22313008", "title": "", "text": "owners in Ochoa, and the young men who refused to join gangs in Santos-Lemus, a “government informant,” as Petitioner defines it, is not a “cohesive, homogeneous” group. Sanchez-Trujillo, 801 F.2d at 1577. A person who identifies as a “government informant” can be anyone of any demographic description who passes information to government authorities for any purpose. There is no “innate characteristic which is so fundamental to the identities or consciences” of government informants that identifies them as a particular social group. Arteaga, 511 F.3d at 944. The purported group, therefore, “naturally manifest[s] a plethora of different lifestyles, varying interests, diverse cultures, and contrary political leanings.” Sanchez-Trujillo, 801 F.2d at 1577. Accordingly, we hold that “government informants” do not comprise a particular social group within the meaning of 8 U.S.C. § 1101(a)(42)(A). We therefore deny Petitioner’s applications for asylum and withholding of removal. With regard to Petitioner’s CAT claim, Petitioner must establish that it is more likely than not that he would be tortured if returned to the proposed country of removal. 8 C.F.R. § 208.16(c)(2). There is no evidence showing a likelihood of torture by gang members if Petitioner were to return to the Philippines. Importantly, Petitioner did not present’ any evidence demonstrating that he would be subject to torture committed by or with the consent of Filipino government officials. Therefore, substantial evidence supports the denial of CAT relief. Petition DENIED. . We review the BIA's legal conclusions de novo. Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir.2004). When, as here, the BIA’s decision is an unpublished decision by one member of the BIA, we give Skidmore deference to the BIA’s \"interpretation of the governing statutes and regulations,” recognizing that, “ ‘while not controlling upon the courts by reason of their authority, [these interpretations] do constitute a body of experience.' ” Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011, 1014 (9th Cir.2006) (alteration in original) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). See discussion infra p. -. \"Factual findings made by the BIA are reviewed under the deferential substantial evidence" }, { "docid": "20471047", "title": "", "text": "testified that he was afraid of gang violence because he had tattoos that gang members might mistake as a sign of membership in a rival gang. An alien’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground. See id. §§ 1231(b)(3), 1101(a)(42); Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004) (holding that random criminal acts bore no nexus to a protected ground). Accordingly, the BIA properly ruled that Zetino did not meet his burden of proving that the potential harm he would suffer in El Salvador was “on account of’ a protected ground such as “race, religion, nationality, membership in a particular social group, or political opinion.” Gormley, 364 F.3d at 1176. Because the BIA’s determination is supported by reasonable, substantial, and probative evidence in the record considered as a whole, the petition for review is denied. IV We do not have jurisdiction to review the BIA’s denial of Zetino’s untimely brief for an abuse of discretion. As a result, this part of the petition is dismissed. Zetino’s due process rights were not violated and substantial evidence supports the BIA’s decision that Zetino did not demonstrate a nexus between the harm he fears and a protected ground. This part of the petition for review is denied. PETITION DISMISSED IN PART, DENIED IN PART. . In his petition for review, Zetino does not challenge the IJ's denial of his application for protection under the United Nations Convention Against Torture. Accordingly, he has waived any challenge to that determination. See Martinez-Serrano v. INS, 94 F.3d 1256, 1260(9th Cir.1996). . We construe Zetino’s motion, filed two weeks after the filing deadline, as solely a motion to accept an untimely brief. An extension of the filing period was factually impossible because the filing period had already lapsed. In its order, the BIA noted its stated policy that a \"request for an extension of time to file a brief must be received at the Board on or before [the] ... due date.” A motion to extend the filing" }, { "docid": "13828425", "title": "", "text": "OPINION JOHN K. BUSH, Circuit Judge. In this immigration case, Maribel Trujillo Diaz petitions for review of an order denying her motion to reopen removal proceedings. The United States Board of Immigration Appeals (“BIA”) ruled that Trujillo Diaz failed to establish a prima facie case of eligibility for asylum or withholding of removal under the Immigration and Nationality Act (“INA” or “Act”) because she failed to show that she would be singled out individually for persecution based on her family membership. The BIA reiterated this finding in ruling that Trujillo Diaz failed to establish a prima facie case of eligibility for protection under the Convention Against Torture. Because the BIA failed to credit the facts stated in Trujillo Diaz’s declarations, and this error undermined its conclusion as to the sufficiency of Trujillo Diaz’s prima facie evidence, we hold that the BIA abused its discretion. We further hold that the BIA abused its discretion in summarily rejecting Trujillo Diaz’s argument that she could not safely relocate internally in Mexico for purposes of showing a prima facie ease of eligibility for relief under the Convention Against Torture. Thus, we vacate the order of the BIA and remand for further proceedings consistent with this opinion. • I Petitioner Trujillo Diaz is a Mexican citizen who entered the United States in February 2002. She was apprehended by Immigration and Customs Enforcement (“ICE”) in 2007 and placed in removal proceedings. On July 11, 2012, Trujillo Diaz had a merits hearing in her immigration proceeding. She sought asylum, withholding of removal under the INA, withholding of removal under the Convention Against Torture, and voluntary departure. During her hearing, Trujillo Diaz testified that she feared for her safety in Mexico because she believed the drug cartel, La Familia, would seek revenge against her and her family for her brother’s refusal to work for them and his subsequent fleeing to the United States. The immigration judge found that Trujillo Diaz’s asylum application was untimely filed, rendering her ineligible for asylum and requiring her claim to be assessed under the higher “clear probability of persecution” standard for withholding of" }, { "docid": "22601898", "title": "", "text": "will be at least one central reason for his persecution. See id. § 1158(b)(1)(B)(i). Zetino testified that he was fearful of returning to El Salvador because, in 1993, bandits attempting to steal his grandfather’s farm had murdered his family members. Zetino did not present evidence that the bandits targeted his family on account of a protected ground such as their race, religion, nationality, membership in a particular social group, or politi cal opinions. Rather, he testified that the farm was on fertile land, and thus valuable. Zetino implied that the only motivation for the murders was the land itself. He testified that the attackers “were insisting on the lands and [his] grandfather did not want to get rid of the land.” Zetino also testified that he was afraid of gang violence because he. had tattoos that gang members might mistake as a sign of membership in a rival gang. An alien’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground. See id. §§ 1231(b)(3), 1101(a)(42); Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir.2004) (holding that random criminal acts bore no nexus to a protected ground). Accordingly, the BIA properly ruled that Zetino did not meet his burden of proving that the potential harm he would suffer in El Salvador was “on account of’ a protected ground such as “race, religion, nationality, membership in a particular social group, or political opinion.” Gormley, 364 F.3d at 1176. Because the BIA’s determination is supported by reasonable, substantial, and probative evidence in the record considered as a whole, the petition for review is denied. IV There was no abuse of discretion, Zetino’s due process rights were not violated, and substantial evidence supports the BIA’s decision that Zetino did not demonstrate a nexus between the harm he fears and a protected ground. The petition for review is denied. PETITION DENIED. . In his petition for review, Zetino does not challenge the IJ’s denial of his application for protection under the United Nations Convention Against Torture. Accordingly, he has waived" }, { "docid": "20471029", "title": "", "text": "We find that the BIA’s denial of the brief in this instance did not violate Zetino’s due process rights. Second, Zetino claims the IJ violated his due process rights by failing to develop a factually complete record or advise him of his right to counsel. This argument is without merit and is unsupported by the record. Third, Zetino claims substantial evidence does not support the BIA’s decision that he failed to demonstrate a nexus between the harm he allegedly faces upon return to El Salvador and a protected ground such as race, religion, nationality, membership in a particular social group, or political opinion. Zetino fears return to El Salvador because in 1993 unidentified masked gunmen murdered members of his family motivated by a desire to steal his grandfather’s land. Neither that event nor his fear of gangs bears a nexus to a protected ground. Accordingly, we deny the petition for review in part and dismiss in part for want of jurisdiction. II “[W]e have jurisdiction to determine our own jurisdiction.” Sareang Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000). We review questions of our own jurisdiction de novo. Miller v. Comm’r, 310 F.3d 640, 642 (9th Cir.2002). Due process challenges to immigration proceedings are also reviewed de novo. Padilla v. Ashcroft, 334 F.3d 921, 923 (9th Cir.2003). We review petitions for review of the BIA’s determination that a petitioner does not qualify for asylum or withholding of removal under the highly deferential “substantial evidence” standard. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Under this standard, the petition for review must be denied if the BIA’s determination is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. The petition for review may be granted only if the evidence presented “was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.” Id. (citing NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939)). Ill Because Zetino filed his application for asylum after the May" }, { "docid": "20471028", "title": "", "text": "our decision in Arteaga v. Mukasey, 511 F.3d 940 (9th Cir.2007), where we held that a tattooed alien’s membership in a violent criminal gang was not “social group” membership for withholding of removal purposes. Zetino now timely petitions for review of the BIA’s decision to reject his untimely brief as well as its decision to uphold the IJ’s ruling denying his applications for asylum and withholding of removal. He presents three distinct challenges, two procedural and one substantive. First, Zetino claims the BIA’s discretionary ruling refusing to accept his untimely brief or to extend the filing period was a violation of his due process rights and an abuse of discretion. The government argues that we do not have jurisdiction over the abuse of discretion challenge to the denial of the motion to accept a late brief because there is no meaningful standard against which to judge the discretionary ruling. We agree. However, we do have jurisdiction to review the BIA’s denial of a motion to accept an untimely brief for a violation of due process. We find that the BIA’s denial of the brief in this instance did not violate Zetino’s due process rights. Second, Zetino claims the IJ violated his due process rights by failing to develop a factually complete record or advise him of his right to counsel. This argument is without merit and is unsupported by the record. Third, Zetino claims substantial evidence does not support the BIA’s decision that he failed to demonstrate a nexus between the harm he allegedly faces upon return to El Salvador and a protected ground such as race, religion, nationality, membership in a particular social group, or political opinion. Zetino fears return to El Salvador because in 1993 unidentified masked gunmen murdered members of his family motivated by a desire to steal his grandfather’s land. Neither that event nor his fear of gangs bears a nexus to a protected ground. Accordingly, we deny the petition for review in part and dismiss in part for want of jurisdiction. II “[W]e have jurisdiction to determine our own jurisdiction.” Sareang Ye v. INS, 214" }, { "docid": "23025365", "title": "", "text": "LEAVY, Circuit Judge. Ferida Kasnecovic, a nátive and citizen of Yugoslavia, petitions for review of a final order of the Board of Immigration Appeals (BIA) denying her applications for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (CAT). An Immigration Judge (IJ) found that Kasneeovic’s asylum application was untimely and that Kasne-covic did not establish extraordinary circumstances to excuse that untimeliness. See 8 U.S.C. § 1158(a)(2)(B), (D) (2000). As an alternative finding, the IJ denied Kasnecovie’s asylum claim on the merits, based on an adverse credibility determination. Finally, the IJ denied Kasnecovic’s petitions for withholding of removal and CAT relief. We have jurisdiction over the petition under 8 U.S.C. § 1252(a)(1). Because substantial evidence supports the IJ’s adverse credibility determination, we deny the petition as to the withholding of removal and CAT claims and dismiss the petition as to the asylum claim. STANDARD OF REVIEW We review the BIA’s decision to determine whether 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) (citation omitted). Where the BIA affirms an IJ’s order without opinion, we review the IJ’s order as the final agency action. Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004). Factual findings underlying the IJ’s order are reviewed for substantial evidence. Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir.2004). FACTS AND PRIOR PROCEEDINGS Kasnecovic entered the United States on December 22, 1998. At the time of entry she told the Immigration and Naturalization Service (INS) interviewer that she was born in Montenegro, Yugoslavia, and gave a specific location, including a zip code equivalent, as her permanent residence in Montenegro. She also told the interviewer that she had two relatives in the United States, an aunt, Osman Kalivo-ri, who lived in Staten Island, New York, and a sister, Dija Kasnecovic, living in Queens, New York. In December 1999, Kasnecovic applied for Temporary Protected Status (TPS), stating that she was born in Kosovo, Yugoslavia, and was a national of Kosovo Province. The INS" }, { "docid": "22601884", "title": "", "text": "and an abuse of discretion. We find that the BIA’s denial of the brief in this instance neither violated Zetino’s due process rights nor constituted an abuse of discretion. Second, Zetino claims the IJ violated his due process rights by failing to develop a factually complete record or advise him of his right to counsel. This argument is without merit and is unsupported by the record. Third, Zetino claims substantial evidence does not support the BIA’s decision that he failed to demonstrate a nexus between the harm he allegedly faces upon return to El Salvador and a protected ground such as race, religion, nationality, membership in a particular social group, or political opinion. Zetino fears return to El Salvador because in 1993 unidentified masked gunmen murdered members of his family motivated by a desire to steal his grandfather’s land. Neither that event nor his fear of gangs bears a nexus to a protected ground. Accordingly, we deny the petition for review. II Due process challenges to immigration proceedings are reviewed de novo. Padilla v. Ashcroft, 334 F.3d 921, 923 (9th Cir.2003). We review petitions for review of the BIA’s determination that a petitioner does not qualify for asylum or withholding of removal under the highly deferential “substantial evidence” standard. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Under this standard, the petition for review must be denied if the BIA’s determination is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. The petition for review may be granted only if the evidence presented “was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.” Id. (citing NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939)). Ill Because Zetino filed his application for asylum after the May 11, 2005, effective date of the REAL ID Act of 2005, we have jurisdiction under Section 242 of the INA, 8 U.S.C. § 1252, as amended by the Act, Pub.L. No. 109-13, Div. B., 119 Stat. 231" }, { "docid": "23696126", "title": "", "text": "SYKES, Circuit Judge. Abdul Khan is a native and citizen of Pakistan who entered the United States with his family in 1998. They remained here after their visitors’ visas expired, and in 2003 Khan applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). His family members are derivative applicants. An Immigration Judge (“IJ”) heard the claims and denied relief, concluding that Khan’s asylum application was untimely and the delay was not excused by extraordinary circumstances; that Khan failed to show he had suffered politically motivated persecution in Pakistan; and that Khan had failed to show a clear probability that he would be persecuted or tortured if he returned to Pakistan. The Board of Immigration Appeals (“BIA”) affirmed. Khan then moved to reopen, presenting what he characterized as new evidence about his physical and mental condition that he claimed undermined the IJ’s decisions. The BIA declined to reopen the case. Khan asks us to review each of these decisions. We dismiss in part and deny in part the petitions for review. Under 8 U.S.C. § 1158(a)(3), we lack jurisdiction to review the BIA’s determinations that Khan’s asylum claim was untimely and the delay was not excused by extraordinary circumstances. The REAL ID Act of 2005, Pub.L. No. 109-13, § 106(a)(1)(h), 119 Stat. 231, 310-11, permits judicial review of constitutional claims or questions of law; Khan’s challenges to the immigration agency’s timeliness and “extraordinary circumstances” determinations address only factual and discretionary issues and therefore lie outside our review jurisdiction. See Vasile v. Gonzales, 417 F.3d 766 (7th Cir.2005). We also conclude that substantial evidence supports the agency’s denial of withholding of removal and protection against removal under the CAT. Finally, to the extent we have jurisdiction to review the denial of Khan’s motion to reopen, we conclude that the BIA did not abuse its discretion in determining that Khan’s “new evidence” was neither new nor material. I. Background Khan is a Mohajir, a term used to describe Pakistanis of Indian descent. Because Mohajirs faced difficulties competing with other Pakistanis for jobs and political influence, some Mohajirs joined" }, { "docid": "22601883", "title": "", "text": "of harm resulting from general conditions of violence and civil unrest affecting the home country’s populace as a whole does not constitute a “well-founded fear of persecution” within the meaning of the Act. Furthermore, the BIA reasoned that Zetino’s fear of harm by criminals or gangs did not “establish that he belongs to a ‘particular social group’ within the meaning of section 101(a)(42)(A) of the Act.” The BIA relied on our decision in Arteaga v. Mukasey, 511 F.3d 940 (9th Cir.2007), where we held that a tattooed alien’s membership in a violent criminal gang was not “social group” membership for withholding of removal purposes. Zetino now timely petitions for review of the BIA’s decision to reject his untimely brief as well as its decision to uphold the IJ’s ruling denying his applications for asylum and withholding of removal. He presents three distinct challenges, two procedural and one substantive. First, Zetino claims the BIA’s discretionary ruling refusing to accept his untimely brief or to extend the filing period was a violation of his due process rights and an abuse of discretion. We find that the BIA’s denial of the brief in this instance neither violated Zetino’s due process rights nor constituted an abuse of discretion. Second, Zetino claims the IJ violated his due process rights by failing to develop a factually complete record or advise him of his right to counsel. This argument is without merit and is unsupported by the record. Third, Zetino claims substantial evidence does not support the BIA’s decision that he failed to demonstrate a nexus between the harm he allegedly faces upon return to El Salvador and a protected ground such as race, religion, nationality, membership in a particular social group, or political opinion. Zetino fears return to El Salvador because in 1993 unidentified masked gunmen murdered members of his family motivated by a desire to steal his grandfather’s land. Neither that event nor his fear of gangs bears a nexus to a protected ground. Accordingly, we deny the petition for review. II Due process challenges to immigration proceedings are reviewed de novo. Padilla v. Ashcroft," }, { "docid": "18239930", "title": "", "text": "SELYA, Circuit Judge. The petitioner, Marlene Lisbeth Arévalo-Girón, is a Guatemalan national. She seeks judicial review of a final order of the Board of Immigration Appeals (BIA) denying her application for withholding of removal. After careful consideration, we deny the petition. The petitioner entered the United States on November 1, 1997, without inspection. Some ten years later, the Department of Homeland Security discovered her presence and initiated removal proceedings against her. See 8 U.S.C. § 1182(a)(6)(A)®; id. § 1229a(a)(2). Before the immigration judge (IJ), the petitioner conceded removability but cross-applied for asylum, withholding of removal, and protection under the United States Convention Against Torture (CAT). In support, she asserted that if returned to Guatemala, she would face persecution on account of her status as either a single woman with perceived wealth or a former “child of war.” The IJ determined that her claim for asylum was time-barred; denied withholding of removal on the ground that she had failed to demonstrate a likelihood of persecution in Guatemala on account of a statutorily protected status; and dismissed her entreaty for CAT relief because she had not shown any governmental involvement in the feared harm. The BIA affirmed the IJ’s decision. This timely petition for judicial review followed. In it, the petitioner challenges only the denial of withholding of removal. Because the BIA added its own gloss to the IJ’s reasoning, we review the two decisions as a unit. See Lopez Perez v. Holder, 587 F.3d 456, 460 (1st Cir.2009). In conducting that review, we test the agency’s factual findings, including credibility determinations, under the familiar substantial evidence rule. Morgan v. Holder, 634 F.3d 53, 56-57 (1st Cir.2011). This rule requires us to accept all factual findings that are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)) (internal quotation marks omitted). In other words, we must uphold such a finding unless the record compels a contrary conclusion. See 8 U.S.C. § 1252(b)(4)(B); Sompotan" }, { "docid": "22786837", "title": "", "text": "D.W. NELSON, Senior Circuit Judge: Afroza and Khandker Hasan, husband and wife, and native citizens of Bangladesh, petition for review of the Board of Immigration Appeals’ denial of their requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) found that the Hasans had failed to establish that their past persecution was on account of an enumerated ground, and therefore dismissed their claims for asylum and withholding of removal. The IJ also found that the Hasans had failed to establish that, upon their return to Bangladesh, they were more likely than not to experience torture with the consent or approval of government officials acting in their official capacity, and therefore, denied them relief under CAT. The Board of Immigration Appeals (“BIA”) affirmed the decision of the IJ without opinion. We have jurisdiction pursuant to the Immigration and Nationality Act (“INA”) § 242(a)(1), 8 U.S.C. § 1252(a)(1). We find that substantial evidence supported the IJ’s conclusion that the Hasans had not established eligibility for CAT relief. However, the IJ erred in concluding that the Hasans had not established that their past persecution was on account of political opinion. Accordingly, we grant the petition for review and reverse and remand to the BIA for further proceedings consistent with this opinion. I. Factual and Procedural History The following facts are drawn from the Hasans’ testimony at their asylum hearing, as well as their written application for asylum. Because the IJ did not make an adverse credibility finding, we accept the Hasans’ testimony as true. See Damon v. Ashcroft, 360 F.3d 1084, 1086 n. 2 (9th Cir.2004). A. The Hasans’ Experiences in Bangladesh Afroza Hasan (hereinafter “Afroza,” in order to distinguish her from her husband “Khandker”), the lead petitioner, worked as a reporter for Purnima, a local newspaper in Bangladesh. She primarily reported on women’s issues in the region in which she lived. Afroza was a member of the Bangladesh Nationalist Party (“BNP”), one of Bangladesh’s major political parties. She was also a member of Mohila Parish-ad, a women’s organization that served distressed women in the" }, { "docid": "23239019", "title": "", "text": "abduction and beating during the civil war did not constitute the “past persecution” necessary to obtain asylum. The immigration judge also concluded that Guzman failed to establish that he had a “well-founded fear of future persecution” in Guatemala. The judge observed that if Guzman were to return to Guatemala his situation would be no different from that of any other citizen. The judge, citing to the State Department’s Profile of Asylum Claims and Country Conditions, also noted that the civil war in Guatemala had ended in 1996. Guzman appealed from the immigration judge’s ruling to the BIA. While his appeal was pending, Guzman filed a motion to remand the case to the immigration judge to apply for protection under the Convention Against Torture. That motion, filed November 4, 1999, stated that “[t]his relief was previously unavailable at the time the Respondent had his hearing for Asylum/Withholding of Deportation.” Guzman appended no documentation supporting his claim for relief. On May 21, 2002, the BIA affirmed the immigration judge’s decision denying asylum and withholding of removal. In addition to the reasons set forth by the immigration judge, the BIA noted that Guzman had failed to demonstrate that any mistreatment had occurred on account of one of the five statutorily protected grounds— his race, religion, nationality, membership in a particular social group, or political opinion. See 8 C.F.R. § 208:13(b)(l)(2002). The BIA also denied Guzman’s motion to remand to apply for protection under the Convention Against Torture. According to the BIA, Guzman’s motion failed to include any evidence or statements of torture which he fears, thus he failed to offer evidence that established a prima facie case for protection under the Convention Against Torture. See id. § 3.28(b)(3). This petition for review followed. DISCUSSION A. Denial of Asylum and Withholding of Removal We review the Board’s findings of fact and credibility under a “substantial evidence” standard. Yatskin v. INS, 255 F.3d 5, 9 (1st Cir.2001). Board determinations of statutory eligibility for relief from deportation, whether via asylum or withholding of removal, are conclusive if “supported by reasonable, substantial, and probative evidence on the" }, { "docid": "22342977", "title": "", "text": "nexus between any incident and a protected ground under the Act.” Based on its review of the record, the BIA concluded that there was “no evidence the respondent ever expressed a political opinion and no evidence to suggest that she was harmed based on any real or imputed political opinion.” As a result, the BIA denied Garcia-Milian’s asylum and withholding of removal claims. The BIA also rejected Garcia-Milian’s CAT claim. It held that the record did not establish that “it is more likely than not that the respondent will face torture by or with the acquiescence or willful blindness of an officer of the government of Guatemala.” II We have jurisdiction under 8 U.S.C. § 1252 to review final orders of removal. Li v. Holder, 656 F.3d 898, 904 (9th Cir.2011). We review the BIA’s denials of asylum, withholding of removal, and CAT relief for “substantial evidence” and will uphold a denial supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir.2010) (internal quotation marks omitted) (asylum); Pagayon v. Holder, 675 F.3d 1182, 1190 (9th Cir.2011) (internal quotation marks omitted) (withholding of removal); see Haile v. Holder, 658 F.3d 1122, 1130-31 (9th Cir.2011) (CAT relief). In order to reverse the BIA, we must determine “that the evidence not only supports [a contrary] conclusion, but compels it — and also compels the further conclusion” that the petitioner meets the requisite standard for obtaining relief. INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The agency’s “[findings of fact are conclusive unless ‘any reasonable adjudicator’ would be compelled to conclude to the contrary.” Kamalyan, 620 F.3d at 1057 (quoting 8 U.S.C. § 1252(b)(4)(B)). A We begin by considering Garcia-Milian’s challenge to the BIA’s denial of her asylum application. Applicants for asylum bear the burden of proving eligibility for asylum. 8 C.F.R. § 208.13(a). In order to carry this burden, an applicant must first establish “refugee” status, 8 U.S.C. § 1158(b)(1) (2000), by proving past persecution or well-founded fear of future persecution “on" }, { "docid": "22634009", "title": "", "text": "Arteaga showed a possibility of mistreatment if he were removed to El Salvador, but concluded that he failed to establish that, more likely than not, the government would torture him. Likewise, the BIA concluded that Arteaga failed to establish that any possible torture would more likely than not be at the hands of the government. Applying the substantial evidence standard of review, we will not disturb the decision of the BIA dismissing Arteaga’s appeal on this issue. We note that Arteaga’s assertion that the IJ held him to an incorrect burden of proof, demanding that he prove a “100 percent certainty” of torture rather than applying the more-likely-than-not standard, is demonstrably false. The record clearly shows that the IJ and the BIA both correctly identified and applied the more-likely-than-not standard. E. We reject Arteaga’s claim that the immigration judge demonstrated extreme bias and prejudice, insinuating that Arteaga deserved any harm that might befall him in prison. He has offered no citations to the record to support this accusation. After reviewing the record, we agree with the BIA that although the IJ commented on Arteaga’s gang-related activity and criminal violations, he provided a thorough and unbiased decision on Arteaga’s case. V We reject Arteaga’s argument that he is a member of a social group within the meaning of 8 U.S.C. § 1231(b)(3), and DENY this aspect of his petition for review. Pursuant to 8 U.S.C. § 1252(a)(2)(C), we DISMISS the portion of Arteaga’s petition challenging the BIA’s conclusion that he was convicted of an aggravated felony. We DENY the remainder of his petition. DISMISSED in part; DENIED in part. . The government's argument that we lack jurisdiction to review the BIA’s rulings on the issues of withholding and CAT relief has been heard and rejected by this court. See Morales v. Gonzales, 478 F.3d 972, 980 (9th Cir.2007) (noting that the jurisdiction-stripping provisions of 8 U.S.C. § 1252(a)(2)(C) apply to removal orders, and not to applications for asylum, withholding of removal, or CAT relief); id. (\"[A]s to our resolution of factual issues, when an IJ ... denies[CAT] relief on the merits," }, { "docid": "7924886", "title": "", "text": "JAMES E. GRAVES, JR., Circuit Judge: Cruz Alberto Garcia, proceeding pro se, petitions this court for review of a Board of Immigration Appeals (BIA) decision. The BIA dismissed his appeal from the Immigration Judge’s (IJ) denial of his application for statutory withholding of removal and Convention Against Torture (CAT) protection. We deny the petition for review as to statutory withholding, grant the petition for review as to CAT protection, and remand to the BIA for further consideration of Garcia’s petition for CAT protection. I. Factual and Procedural Background In 2006, Garcia, a native and citizen of El Salvador, was ordered removed in ab-sentia to El Salvador after he failed to appear at a removal hearing and answer charges that he was an alien present in the United States without being admitted or paroled. See 8 U.S.C. § 1229a(b)(5)(A). Garcia was removed in June 2011, but reentered the United States illegally in February 2012. In March 2012, the Department of Homeland Security (DHS) reinstated the 2006 removal order. See 8 U.S.C. § 1231(a)(5). Because Garcia expressed a fear of persecution or torture if removed to El Salvador, he was referred to an asylum officer for an interview. See 8 C.F.R. § 241.8(e). The asylum officer found that Garcia did not have a reasonable fear of persecution but that he did have a reasonable fear of torture, and referred the case to. an IJ. See 8 C.F.R. § 208.31(e). Garcia filed a pro se application for statutory withholding of removal under 8 U.S.C. § 1231(b)(3)(A) and for relief under the CAT. At his hearing before the IJ, Garcia testified to the events occurring between his 2011 removal from the United States, and his 2012 illegal reentry. He testified that when he returned to El Salvador after being removed, he lived and worked in San Salvador. In August 2011, Garcia submitted documents to renew his national identification card. Soon after, he received a call on his cell phone from a man who said he was from the National Registration Center (NRC) and needed to verify Garcia’s information. The man asked Garcia his name," }, { "docid": "22342976", "title": "", "text": "men would find out and kill her. Two days later, she reported the incident to the Sa-lama police, who told her they could not investigate the incident because she could not identify her assailants. Fearing for her life, Garcia-Milian left Guatemala for Mexico, and then paid a “coyote” to smuggle her across the border into the United States. In addition to testifying at the proceeding, Garcia-Milian submitted a State Department report on Guatemala titled Country Reports on Human Rights Practices-2006, and four Amnesty International reports. The reports indicate that Guatemalan police had minimal training or capacity for investigating or assisting victims of sexual crimes, and that the Guatemalan government had been ineffective in investigating violence against women and homicides generally, due to weaknesses throughout the criminal justice and law enforcement system. The IJ denied Garcia-Milian’s applications for asylum, withholding of removal, and CAT relief. The BIA affirmed the IJ’s decision. It noted that “[wjhile the respondent appears to have been the victim of criminal acts on the several occasions described, she has not established a nexus between any incident and a protected ground under the Act.” Based on its review of the record, the BIA concluded that there was “no evidence the respondent ever expressed a political opinion and no evidence to suggest that she was harmed based on any real or imputed political opinion.” As a result, the BIA denied Garcia-Milian’s asylum and withholding of removal claims. The BIA also rejected Garcia-Milian’s CAT claim. It held that the record did not establish that “it is more likely than not that the respondent will face torture by or with the acquiescence or willful blindness of an officer of the government of Guatemala.” II We have jurisdiction under 8 U.S.C. § 1252 to review final orders of removal. Li v. Holder, 656 F.3d 898, 904 (9th Cir.2011). We review the BIA’s denials of asylum, withholding of removal, and CAT relief for “substantial evidence” and will uphold a denial supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir.2010)" }, { "docid": "10102081", "title": "", "text": "largely subjective, that fail to establish a sufficient level of particularity.” Id. The description of Paiz-Morales’s proposed group is even less specific than that in Mendez-Barrera. Our previous decisions have also rejected similar proposed social groups. See Gardas-Callejas v. Holder, 666 F.3d 828, 829- 30 (1st Cir.2012) (rejecting targets of gang recruitment in El Salvador as a particular social group); Larios v. Holder, 608 F.3d 105, 108-09 (1st Cir.2010) (rejecting the proposed group “young Guatemalan men recruited by gang members who resist such recruitment”). We do not mean to suggest “a blanket rejection of all factual scenarios involving gangs.” Matter of M-E-V-G-, 26 I. & N. Dec. at 251. “Social group determinations are made on a case-by-case basis.” Id. But on the record of this case, where Paiz-Morales failed to offer any evidence of the existence of a legally cognizable particular social group, it is clear that the BIA’s determination was supported by substantial evidence. Finally, Paiz-Morales argues that the BIA erred in dismissing his appeal of the denial of his application for withholding of removal. We can dispense with this argument quickly. “Although the 'threshold of eligibility for withholding of removal is similar to the threshold for asylum, withholding requires a higher standard.” Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir.2009). “Withholding of removal requires a showing that an alien is more likely than not to face persecution on account of a protected ground.” Id. (internal quotation marks omitted). Paiz-Morales did not establish that he faced persecution on account of a legally cognizable social group. A petitioner who cannot clear the lower hurdle for asylum will necessarily fail to meet the higher bar for withholding of removal. For the reasons discussed, we deny the petition for judicial review. . Paiz-Morales also contests the denial of his application for protection under the Convention Against Torture (\"CAT”). Under 8 U.S.C. § 1252(d)(1), we may review a final order of removal only if the petitioner has exhausted his administrative remedies. Paiz-Morales did not challenge the IJ’s dismissal of his CAT claim before the BIA. Aside from one sentence in his brief" } ]

[ { "docid": "22306313", "title": "", "text": "reprinted in 1978 U.S.Code Cong. & Ad.News 5963, 6311. The Senate Report, supra, further states that “[i]n general, administrative expenses include taxes which the trustee incurs in administering the debtor’s estate, .... ” Therefore a post-petition tax incurred as an actual, necessary cost of preserving the estate may be promoted to administrative expense priority under section 503(b)(1)(B). For purposes of determining when the taxes were incurred, it is the date the taxes accrued rather than the date of assessment which controls. In re Scrap Disposal, Inc., 24 B.R. 178,180 (Bkrtcy.S.D.Cal. 1982). In the instant case, the taxes accrued after the filing of the petition and are eligible for promotion to an administrative expense if they were incurred as an actual, necessary cost of preserving the estate. Unless a reorganization plan provides otherwise, confirmation vests all of the property of the estate in the debtor and releases it from all claims and interests of creditors. See 11 U.S.C. § 1141(b) & (c). The IRS, as well as other post-confirmation creditors of the reorganized debtor, are no longer restrained by the automatic stay in bankruptcy which terminates when the property of the estate vests in the reorganized debtor upon confirmation. See 11 U.S.C. § 362(c). Since the bankruptcy estate is no longer being administered by the trustee or the debtor in possession, taxes which accrue post-confirmation are not incurred as actual, necessary costs and expenses of preserving the estate pursuant to section 503(b)(1)(B). Upon conversion of a Chapter 11 reorganization to a Chapter 7 liquidation, unpaid employment and unemployment taxes are treated the same as prepetition claims. See 11 U.S.C. § 348(d). Accordingly, they are entitled to a sixth priority under section 507(a)(6). The government contends that the “estate” continues to exist from the commencement of the case, throughout the administering of the estate and until the closing of the case. Taxes incurred by the reorganized debtor, it is argued, should be entitled to treatment as administrative expenses. Under the facts of this case, the government’s argument is not persuasive to the court. It is clear that upon confirmation of a plan" } ]

[ { "docid": "1131820", "title": "", "text": "which to file a late claim. Conclusions of Law This Court has previously held in In re Davidson Lumber Co., 47 B.R. 597 (Bankr.S.D.Fla.1985) that a tax accrues on the date it is incurred, not on the date of assessment or the date it is payable: Having been incurred [prepetition], the taxes are prepetition irrespective of the fact that returns, assessment and payment were not due until after the petition date. In re Overly-Hautz Co., 57 B.R. 932, 937 (Bankr.N.D.Ohio 1986), aff'd, 81 B.R. 434 (N.D.Ohio 1987). See also In re Connecticut Motor Lines, Inc., 336 F.2d 96 (3rd Cir.1964); In re Wheeling-Pittsburgh Steel Corp., 103 B.R. 672 (W.D.Pa.1989); Matter of O.P.M. Leasing Serv., Inc., 68 B.R. 979 (Bankr.S.D.N.Y.1987). Because the Sale giving rise to the tax liabilities occurred prior to the Petition Date, the Tax Obligations were incurred prior to the Petition Date. Accordingly, the Court concludes that the Tax Obligations constitute prepetition obligations of the Prime Debtors, notwithstanding the fact that the obligations were not payable or even assessable until after the Petition Date. Notwithstanding the Court’s determination that the foregoing taxes are prepetition obligations, the Court concludes that sufficient cause has been shown for this Court to extend the bar date to permit the filing of claims for such obligations. Subsection (c)(3) of Bankruptcy Rule 3003 permits the court “for cause shown” to extend the time for filing proofs of claim in a Chapter 11 case. Most courts have read this rule together with Rule 9006(b) to require a showing of “excusable neglect” on the part of the creditor to justify the extension. See, 8 Collier On Bankruptcy, § 3003.95[4] (15th Ed.1992). In order to decide whether sufficient cause has been shown, an examination of the facts is necessary. It should be noted initially that the debtors were undoubtedly aware that substantial amounts of New Jersey corporation taxes were due as a result of the $170 million sale on July 2, 1990. Significantly, although that knowledge existed at the time the debtors filed their amended schedules of assets and liabilities on January 15, 1991, the debtors did" }, { "docid": "12843590", "title": "", "text": "sub nom. United States v. Redmond, 36 B.R. 932 (Bankr.D.Kans.1984). Accord In re Davidson Lumber Co., 47 B.R. 597 (Bankr.S.D.Fla.1985); In re Scrap Disposal, Inc., 24 B.R. 178 (Bankr.S.D.Cal.1982), aff'd on other grounds, 38 B.R. 765 (Bankr.B.A.P. 9th Cir.1984). The debtor argues that the absence of a pre-petition limitation in Code § 507(a)(6)(C) is a significant indication of congressional intent when compared with the limitations to be found in subsections (a)(6)(A)(i) and (ii), and (a)(6)(B). I disagree. As the court concluded in Friendship College, Inc., supra, 37 F.2d at 432: Other sections of § 507(a)(6) give sixth priority to other types of taxes. All of these other sections, however, apply almost entirely, if not entirely, to pre-petition taxes. Thus the context of § (C) suggests that it too would apply only to pre-petition taxes, and since the estate is no longer a “debtor,” the language of the section supports the government. If Congress had intended for the estate to be affected by that section, it would have used the word “estate,” as it did in § 503. The ambiguity in the statutes upon which the debtor has sought to depend has been recognized in commentary. This commentary has also rejected the debtor’s analysis. The prevailing view is that all that was meant by the reference to section 507(a)(6) in section 503(b)(l)(B)(i) is that a pre-petition tax claim which remains unpaid after a debtor’s petition is not, for that reason, given administrative expense status under section 503(b)(l)(B)(i). See 3 Collier on Bankruptcy If 503.04[b] at 503-25-6 (15th ed. 1984). See also In re St. Louis Freight Lines, Inc., supra, 45 B.R. 546, 549 n. 5. The debtor also contends that while Code § 503(b)(1)(C) grants an administrative priority to “any fine, penalty or reduction in credit relating to a tax of a kind specified in subparagraph (B) of this paragraph,” subparagraph (C) contains no mention of interest. Relying upon this absence of any reference to interest in subparagraph (C), the debtor argues that even if taxes and penalties are administrative expenses, the claim for interest should not be allowed that priority." }, { "docid": "18485926", "title": "", "text": "final statements of both House and Senate sponsors, Representative Edwards and Senator DeConcini, reflect that Congress intended that the compromise bill adopt the substance of the Senate Finance Committee’s definition of “incurred.” The House Amendment also adopts the substance of the definition in section 346(a) [of] the Senate amendment of when taxes are to be considered “incurred” except that the House amendment applies these definitions solely for purposes of determining which category of section 507 tests the priority of a particular tax liability. Thus, for example, the House amendment contains a special rule for the treatment of taxes under the 45-day exception to the preference rules under section 547 and the definitions of when a tax is incurred for priority purposes are not to apply to such preference rules. Under the House amendment, for purposes of the priority rules, a tax on income for a particular period is to be considered “incurred” on the last day of the period. A tax on or measured by some event, such as the payment of wages or a transfer by reason of death or gift, or an excise tax on a sale or other transaction is to be considered “incurred” on the date of the transaction or event. 124 Cong.Rec. 32,416 (September 28, 1978) (statement of Rep. Edwards); 124 Cong. Rec. 34,016 (October 5, 1978) (statement of Sen. DeConcini) (emphasis added). These statements indicate that Congress omitted the Senate Finance Committee’s broad definition because of concern over the impact of the definition of the term “incurred” upon the rule for preferences. We are persuaded that it is equally apparent from these statements that, in the absence of an explicit definition, Congress intended for a tax on income to be considered “incurred” on the last day of the income period. In addition to relying on the legislative history of the Bankruptcy Code, the Government also refers to various provisions of the Internal Revenue Code to reinforce its position that PATCO’s 1988 income taxes were not incurred prior to the close of the reporting period. The Government asserts that by excluding pre-petition income from eligibility" }, { "docid": "4681418", "title": "", "text": "if a case has been filed by an officer who is the subject of the 100% penalty investigation. Of course, the investigating revenue officer can always ask a corporate officer if he has filed a bankruptcy case. The final question is whether all or part of the penalty should be allowed as a post-petition claim under Bankruptcy Code § 1305(a)(1). 11 U.S.C.A. § 1305(a)(1). The IRS at one point argued that all the 100% penalty claim is a claim for “postpetition” taxes — taxes incurred by Mr. Miller during the chapter 13 case— which is allowable under Bankruptcy Code § 1305. As to the penalty for the first two quarters of 1986, the law on this point is clearly against the IRS and in Mr. Miller’s favor. For the first two quarters of 1986, the corporation had filed the employment tax returns before Mr. Miller filed his chapter 13 case. The employment taxes for those two quarters were due. Assuming Mr. Miller is liable for the 100% penalty, he was liable then, before he filed his chapter 13 case. All that remained was for the IRS to examine the facts and determine that he was liable. This is exactly the kind of situation in which the deadline for filing a proof of claim is supposed to spur the IRS to speed up its processes or obtain an extension of time to file a proof of claim. The IRS’s need to investigate the prepetition facts before it decides to assess a tax or a penalty does not convert a contingent, disputed, or unliquidated claim for prepetition taxes into a claim for postpetition taxes. 11 U.S.C. §§ 507(a)(7), 502(i), & 101(4), (11); see, e.g., In re Easton, 59 B.R. 714 (Bankr.C.D.Ill.1986); In re Overly-Hautz Co., 57 B.R. 932, 14 Coll.Bankr.Cas.2d 360 (Bankr.N.D.Ohio 1986); In re Starkey, 49 B.R. 984 (Bankr.D.Colo.1984); In re Sapienza, 27 B.R. 526, 10 Bankr.Ct.Dec. 358 (Bankr.W.D.N.Y.1983); In re Phillips, 27 B.R. 94, 10 Bankr.Ct.Dec. 4 (Bankr.E.D.Va.1983). Thus, the 100% penalty claim for failure to pay employment taxes for the' first two quarters of 1986 is a prepetition claim" }, { "docid": "1131819", "title": "", "text": "gain on the $170 million sale of assets on July 2, 1990. It is not disputed that the State of New Jersey received notice of the Bar Date and a copy of the Schedules (as they pertained to New Jersey) on or about January 15, 1991. It is also not disputed that the State of New Jersey failed to file a proof of claim in these cases for the tax obligations. The debtors seek to have this $2.6 million tax debt classified as a prepetition debt. The State asks the Court to deny the Tax Motion on the grounds that (i) the taxes did not become due until after the Petition Date, and as such, the obligations are post-petition obligations of the Prime Debtors, and (ii) even assuming the taxes constitute prepetition obligations, the Court should extend the Bar Date to allow the State of New Jersey to file a late claim. For the reasons set forth below, the Court must reject the State’s first argument, but grants the State an extension of time within which to file a late claim. Conclusions of Law This Court has previously held in In re Davidson Lumber Co., 47 B.R. 597 (Bankr.S.D.Fla.1985) that a tax accrues on the date it is incurred, not on the date of assessment or the date it is payable: Having been incurred [prepetition], the taxes are prepetition irrespective of the fact that returns, assessment and payment were not due until after the petition date. In re Overly-Hautz Co., 57 B.R. 932, 937 (Bankr.N.D.Ohio 1986), aff'd, 81 B.R. 434 (N.D.Ohio 1987). See also In re Connecticut Motor Lines, Inc., 336 F.2d 96 (3rd Cir.1964); In re Wheeling-Pittsburgh Steel Corp., 103 B.R. 672 (W.D.Pa.1989); Matter of O.P.M. Leasing Serv., Inc., 68 B.R. 979 (Bankr.S.D.N.Y.1987). Because the Sale giving rise to the tax liabilities occurred prior to the Petition Date, the Tax Obligations were incurred prior to the Petition Date. Accordingly, the Court concludes that the Tax Obligations constitute prepetition obligations of the Prime Debtors, notwithstanding the fact that the obligations were not payable or even assessable until after the Petition" }, { "docid": "18597040", "title": "", "text": "and interest from the recapture of investment credit applied to certain equipment which was abandoned by the trustee. An earlier claim filed by the I.R.S. for corporate income taxes (Claim No. 22 in Case No. 82-00443) was allowed as tardily filed (C.P. No. 413). Administrative claim status is denied to taxes that are not incurred in the operation of the debtor’s business after the filing of the petition. In re Westholt Manufacturing, Inc., 20 B.R. 368, 371 (Bkrtcy.D.Kan.1982), aff'd sub nom. United States v. Redmond, 36 B.R. 932 (D.Kan.1984). The determination of priority depends on when the tax is incurred, i.e., the date of accrual rather than the date of assessment. In re Scrap Disposal, Inc., 24 B.R. 178, 180 (Bkrtcy.S.D.Calif.1982). I find that the claim is not for an administrative expense of the estate. Although the claim arose after the commencement of the case, it relates back to a pre-bankruptcy corporate income tax liability and was not incurred by the estate. In re Carlisle Court, Inc., 36 B.R. 209, 217 (Bkrtey.D.C.1983); Scrap at 180. I agree with my colleague in the well-reasoned decision in the only case directly on point, In re Higgins, 29 B.R. 196, 201 (Bkrtcy.N.D.Iowa 1983). I have not overlooked the legislative history which notes the deletion from the final version of the law of the section which states that a claim for recapture of an investment tax credit shall be determined: “as if such claim had arisen before the date of the filing of the petition.” S.Rep. 95-989, 95th Cong., 2d Sess. 65 (1978), U.S. Code Cong. & Admin. News 1978, pp. 5787, 5851. The Senate Report recommending that such claim be treated as an administrative claim did not result in an explicit provision in the Code or in subsequent amendments. Neither was the treatment of a recapture of investment tax credit resolved in the bankruptcy tax bill, as was intended. The I.R.S. in its memorandum of law (C.P. No. 487) concedes, and I agree, that this legislative history is inconclusive. A recent decision of the Eleventh Circuit concerning the allowability of an untimely filed" }, { "docid": "18580820", "title": "", "text": "evidence that failure to timely file was the result of excusable neglect, IRS’s attempt to raise this issue by brief fails. IRS maintains the 1982 excise taxes are administrative expenses which is contrary to the unsecured priority status on the supplemental claim. Further, it is contrary to Bankruptcy law. Administrative expenses may include “any tax — incurred by the estate...” 11 U.S.C. § 503(b)(1)(B)(i). Administrative priority status is granted only to taxes incurred by the estate as a necessary cost of preserving the estate. United States v. Redmond, 36 B.R. 932 (D.Kansas 1984). A tax is incurred on the date it accrues, not on the date of assessment or the date it is pay able. Redmond; In re Davidson Lumber Co., 47 B.R. 597 (Bankr.S.D.Fla.1985); and In re Scrap Disposal, Inc., 24 B.R. 178 (Bankr.S.D.Calif.1982), aff’d 38 B.R. 765 (Bankr. 9th Cir.1984). The excise taxes relate to Debtor’s pension plan funding deficiencies for 1982 which accrued December 31, 1982. This is so with the entire claim which includes the tax on the initial funding deficiency and additional tax imposed for failure to timely cure that deficiency. 26 U.S.C. § 4971(a) and (b). Having been incurred as of December 31, 1982, the taxes are pre-petition irrespective of the fact that returns, assessment and payment were not due until after the petition date. The 1982 taxes are not entitled to administrative expense status under Section 503. Consideration of Section 502(i) is unnecessary since it does not give the 1982 taxes administrative status as IRS maintains. In reality, the section provides to the contrary. “A claim that does not arise until after the commencement of the case for a tax entitled to priority under section 507(a)(6) of this title shall be determined, and shall be allowed under subsection (a), (b), or (c) of this section, or disallowed under subsection (d) or (e) of this section, the same as if such claim had arisen before the date of the filing of the petition.” 11 U.S.C. § 502(i) In effect this section provides that the specified claims which arise post-petition will nonetheless be treated as" }, { "docid": "1150338", "title": "", "text": "home, except for an approximate $100 debt to a local department store. The plan provides for full payment in deferred cash payments of all priority claims. The IRS filed a priority claim for $17,-251.06. It adds interest and penalties totaling $8,219.06 to the taxes for 1977-1981 and 1983 totaling $9,032.00. The claim failed to take account of the payments on the 1977 taxes. The IRS amended the claim to reduce the 1977 tax and delete the interest on the 1977 tax. This left the total claim at $15,607.06. The trustee requested a modification of the plan to increase the amount of payments because the plan was not feasible in light of the amount of the IRS’s claim and the proposed payments of $25 per week. The payments were increased to $71.25 per week. The debtors objected to the IRS’s claim on the ground that most of the tax debts were discharged in their earlier chapter 13 case. That is the question now before the court. Discussion The 1977-1980 taxes in question were a prepetition debt in the debtors’ first chapter 13 case. The tax years had ended, and the debtors had filed their returns for 1977-1980 before they filed their chapter 13 petition in September, 1981. The taxes were a prepetition debt even though the IRS could not determine that they were owed until it did a postpetition audit of the debtors’ tax returns. 11 U.S.C. §§ 507(a)(7), 502(i) & 101(4), (11); In re Easton, 59 B.R. 714 (Bankr.C.D.Ill.1986); In re Overly-Hautz Co., 57 B.R. 932, 14 Coll.Bankr.Cas.2d 360 (Bankr.N.D.Ohio 1986); In re Starkey, 49 B.R. 984 (Bankr.D.Colo.1984); In re Pennetta, 19 B.R. 794, 8 Bankr.Ct.Dec. 1286, 6 Coll.Bankr.Cas.2d 462 (Bankr.D.Colo.1982); S. 2266, 95th Cong.2d Sess. § 346 (1978) (definition of when tax debt incurred), S.Rep. No. 1106, 95th Cong.2d Sess. 7-8 (1978) (explanation of definition); 124 Cong.Rec. H 11109 (daily ed. Sept. 28, 1978) (Rep. Edwards) (explanation of deletion of definition); 124 Cong. Rec. S.17430 (daily ed. Oct. 6, 1978) (Sen. DeConcini) (explanation of deletion of definition). In a chapter 7 liquidation case, certain taxes are specifically excepted from" }, { "docid": "4681419", "title": "", "text": "his chapter 13 case. All that remained was for the IRS to examine the facts and determine that he was liable. This is exactly the kind of situation in which the deadline for filing a proof of claim is supposed to spur the IRS to speed up its processes or obtain an extension of time to file a proof of claim. The IRS’s need to investigate the prepetition facts before it decides to assess a tax or a penalty does not convert a contingent, disputed, or unliquidated claim for prepetition taxes into a claim for postpetition taxes. 11 U.S.C. §§ 507(a)(7), 502(i), & 101(4), (11); see, e.g., In re Easton, 59 B.R. 714 (Bankr.C.D.Ill.1986); In re Overly-Hautz Co., 57 B.R. 932, 14 Coll.Bankr.Cas.2d 360 (Bankr.N.D.Ohio 1986); In re Starkey, 49 B.R. 984 (Bankr.D.Colo.1984); In re Sapienza, 27 B.R. 526, 10 Bankr.Ct.Dec. 358 (Bankr.W.D.N.Y.1983); In re Phillips, 27 B.R. 94, 10 Bankr.Ct.Dec. 4 (Bankr.E.D.Va.1983). Thus, the 100% penalty claim for failure to pay employment taxes for the' first two quarters of 1986 is a prepetition claim that is barred by the IRS’s failure to file a timely proof of claim. This leaves only the question of whether the 100% penalty based on the failure to pay employment tax for the third quarter of 1986 is partly or entirely a postpetition claim. The third quarter penalty raises a more difficult question because Mr. and Mrs. Miller filed their chapter 13 case in September, 1986, before the end of the third quarter— before the employment tax return was due and apparently before payment of the employment taxes was due. The third quarter tax and the 100% penalty might be split into prepetition and postpetition portions; the tax or the penalty would be a prepetition claim to the extent they are based on payments to employees before the Millers filed their chapter 13 case. The court has several questions about this result. Does the court’s decision in In re Ryan mean that the entire third quarter claim should be treated as a postpetition tax claim under Bankruptcy Code § 1305(a)(1)? In re Ryan, 78" }, { "docid": "1150339", "title": "", "text": "in the debtors’ first chapter 13 case. The tax years had ended, and the debtors had filed their returns for 1977-1980 before they filed their chapter 13 petition in September, 1981. The taxes were a prepetition debt even though the IRS could not determine that they were owed until it did a postpetition audit of the debtors’ tax returns. 11 U.S.C. §§ 507(a)(7), 502(i) & 101(4), (11); In re Easton, 59 B.R. 714 (Bankr.C.D.Ill.1986); In re Overly-Hautz Co., 57 B.R. 932, 14 Coll.Bankr.Cas.2d 360 (Bankr.N.D.Ohio 1986); In re Starkey, 49 B.R. 984 (Bankr.D.Colo.1984); In re Pennetta, 19 B.R. 794, 8 Bankr.Ct.Dec. 1286, 6 Coll.Bankr.Cas.2d 462 (Bankr.D.Colo.1982); S. 2266, 95th Cong.2d Sess. § 346 (1978) (definition of when tax debt incurred), S.Rep. No. 1106, 95th Cong.2d Sess. 7-8 (1978) (explanation of definition); 124 Cong.Rec. H 11109 (daily ed. Sept. 28, 1978) (Rep. Edwards) (explanation of deletion of definition); 124 Cong. Rec. S.17430 (daily ed. Oct. 6, 1978) (Sen. DeConcini) (explanation of deletion of definition). In a chapter 7 liquidation case, certain taxes are specifically excepted from discharge. 11 U.S.C. § 523(a)(1) & § 727. In a chapter 13 case, however, these same taxes may be discharged. Section 1328(a) provides that the discharge after completion of a chapter 13 plan discharges all debts provided for in the plan, except family support debts and long-term debts not intended to be fully dealt with by the plan. 11 U.S.C. § 1328(a). In order for a debt to be provided for in a plan, the debtor is not required to schedule it exactly. It can be scheduled in a disputed or estimated amount. There are postpetition and postconfirmation procedures for determining the exact amount, including the exact amount of tax claims. The plan itself does not have to specifically name the governmental creditor in order to provide for an unsecured tax claim. It is sufficient if the plan provides for full payment of priority unsecured claims and pay ment of some percentage on nonpriority unsecured claims. The amounts and classes of the claims will be determined from the proofs of claims that are filed. In" }, { "docid": "6066031", "title": "", "text": "has made. . The cited case was decided before the 1994 amendments to § 503(a), permitting the court to allow the filing of a tardy request for payment of an administrative claim for cause. . The label \"assessed” in the Maryland statute, however, does not mean “assessed” within the meaning of 11 U.S.C. § 507(a)(7)(B). See infra part III.A. . See infra part IV.B. . These decisions have conflicting holdings, but they are cited because they focus not on the date of valuation as controlling but on the tougher issue of when the tax becomes fixed. The issue of when the taxes here became fixed (and what that shotdd mean) is discussed in addressing the other possible meanings of “assessed.” . As will be seen in part IV.B, under the Maryland statute the tax is but a tentative tax as of January 1 preceding the due date of the tax because the tax is subject to modification if the property is destroyed or sold before July 1. . An example of such a tax claim is a federal withholding tax incurred by the debtor over pre-petition periods but not actually \"arising” until after the filing of the petition. See In re Overly-Hautz Co., 57 B.R. 932, 937 (Bankr.N.D.Ohio 1986), aff'd, 81 B.R. 434 (N.D.Ohio 1987). Another example is a federal investment credit recapture tax arising postpetition but incurred based on the debtor’s prepetition use of the investment tax credit. See In re Higgins, 29 B.R. 196, 201 (Bankr.N.D.Iowa 1983). . “Stock in business” is defined as “inventory of a commercial or manufacturing business that is engaged in business in this State.” Id. § 8-110(a)(4)®. . The Wendy’s Food court mistakenly stated that the Damar court disallowed the claim under § 503(b). At the page of the Damar' opinion cited by the Wendy’s Food court, the Damar court holds that the claim should be disallowed under § 502(b)(3). Damar, 30 B.R. at 258. . IRS v. Noland, 190 B.R. 827 (S.D.Ohio 1993). . The counties have not insisted that this argument be addressed in an adversary proceeding, as required by F.R.Bankr.P." }, { "docid": "1146301", "title": "", "text": "31, 1984. The two positions advanced mirror the two major theories used to determine the pre or post-petition status of a tax. One line of cases fixes a tax claim based on when the income is earned on which the tax is applied. Under this theory, the status of a tax in bankruptcy is predicated upon the date the tax is incurred, not when assessed. See In re Overly-Hautz Co., 57 B.R. 932, 937 (Bankr.N.D.Ohio 1986); In re Davidson Lumber Co., 47 B.R. 597, 598-99 (Bankr.S.D.Fla.1985); In re Scrap Disposal, Inc., 24 B.R. 178, 180 (Bankr.S.D.Cal-if. 1982). In contrast, another line of cases hold that the key triggering device is when a tax is due. See United States v. Ripley (In re Ripley), 926 F.2d 440, 448 (5th Cir. 1991); In re Gonzalez, 112 B.R. 10, 12 (Bankr.E.D.Tex.1989); In re Starkey, 49 B.R. 984, 987 (D.Colo.1984). This Court believes that the language of the Bankruptcy Code mandates the second rule; the key event is when a tax is due. Section 1305 provides that a government unit may file a post-petition claim for taxes that “become payable ... while the case is pending.” 11 U.S.C. § 1305(a)(1). Thus, a tax claim that becomes payable after the filing of a petition is a post-petition claim. As the Fifth Circuit determined in Ripley, taxes that are payable are “those that must be paid now.\" 926 F.2d at 444 (emphasis in original). The Ripley Court further summarized that “our view [is] that taxes “become payable” when the tax return is due.” Id. at 446. The debtors’ 1984 Personal Liability became payable when their 1984 tax return was due, on April 15, 1985. Therefore, the 1984 Personal Liability is a post-petition liability. Since the IRS has failed to file a post-petition claim, under § 1305(a)(1), on the 1984 Personal Liability the IRS must wait until the case is closed to collect the sums due. 5 COLLIER ON BANKRUPTCY U 1305.01(2) (15th ed. 1992) (“the holder of ... a post-petition claim may refrain from filing proof of the post-petition claim, thereby waiving the right to distribution" }, { "docid": "18597039", "title": "", "text": "ORDER ON CLAIMS OF INTERNAL REVENUE SERVICE THOMAS C. BRITTON, Bankruptcy Judge. The trustee has moved (C.P. No. 470) to strike the claims of the I.R.S. filed after the claims’ bar date of March 2, 1983. The hearing scheduled for November 30, 1984 was continued, and this matter was heard on January 16, 1985. The facts are undisputed. The issue, therefore, is whether the claim for $62,746 due the I.R.S. for recapture of the debtor’s investment tax credit is allowed as (1) an administrative claim under 11 U.S.C. § 503(b) and, therefore, a first priority under § 507(a)(1), (2) an unsecured tax claim entitled to sixth priority under § 507(a)(6), or (3) an untimely filed claim. The bankruptcy case was filed on March 2, 1982 under chapter 7. The claims’ bar date was March 2, 1983. The trustee filed a tax return for the 1982 tax year on July 24, 1984. On August 27, 1984 an assessment was made by the I.R.S. against the debtor for taxes due in the amount of $62,-746 plus penalties and interest from the recapture of investment credit applied to certain equipment which was abandoned by the trustee. An earlier claim filed by the I.R.S. for corporate income taxes (Claim No. 22 in Case No. 82-00443) was allowed as tardily filed (C.P. No. 413). Administrative claim status is denied to taxes that are not incurred in the operation of the debtor’s business after the filing of the petition. In re Westholt Manufacturing, Inc., 20 B.R. 368, 371 (Bkrtcy.D.Kan.1982), aff'd sub nom. United States v. Redmond, 36 B.R. 932 (D.Kan.1984). The determination of priority depends on when the tax is incurred, i.e., the date of accrual rather than the date of assessment. In re Scrap Disposal, Inc., 24 B.R. 178, 180 (Bkrtcy.S.D.Calif.1982). I find that the claim is not for an administrative expense of the estate. Although the claim arose after the commencement of the case, it relates back to a pre-bankruptcy corporate income tax liability and was not incurred by the estate. In re Carlisle Court, Inc., 36 B.R. 209, 217 (Bkrtey.D.C.1983); Scrap at 180." }, { "docid": "6065996", "title": "", "text": "was nothing to assess until then. 3 But the court believes Congress did not have 26 U.S.C. § 6203 in mind in enacting 11 U.S.C. § 507(a)(7)(B) because property taxes so often are thought of as arising with respect to the property which is an ultimate source of recovery, such that the collection of the tax is not the critical focus. Rather, the critical focus is when the property inescapably becomes subject to the tax, that is, when the tax is imposed. Decisions analyzing § 507(a)(7)(B) are consistent with that interpretation. See, e.g., In re Scrap Disposal, Inc., 38 B.R. 765 (9th Cir. BAP 1984), aff'g 24 B.R. 178 (Bankr.S.D.Cal.1982) (court focussed on when tax was incurred, not when tax bill was sent out); In re Grivas, 123 B.R. 876, 880-81 (Bankr.S.D.Cal.1991) (tax assessed on date lien arose by statute, not on date of enrollment on tax rolls). See also the cases cited in part III.A.1. That this is the more logical interpretation can be illustrated by a hypothetical property tax. Assume that a property tax which is fully fixed on January 1 is recorded later that year for billing and collection purposes on a date after the filing of the petition commencing a bankruptcy case. Under the court’s interpretation, the property tax would nevertheless be a prepetition claim “assessed” within the meaning of § 507(a)(7)(B) and hence entitled to priority under § 507(a)(7)(B) because the tax was fully imposed by law before the filing of the petition. That would comport with Congress’ intent that the estate be liable only for those taxes the estate incurred. If the hypothetical tax were instead deemed assessed after the petition, it would not be entitled to § 507(a)(7)(B) priority treatment because it was not assessed before the petition and would not be entitled to administrative priority treatment because it was not incurred by the estate. The tax would fall into a black hole and be accorded only general unsecured status. It is doubtful Congress intended such taxes to be accorded no priority whatsoever. It follows that “assessed” under 11 U.S.C. § 507(a)(7)(B) must" }, { "docid": "1146300", "title": "", "text": "proposition that the pre-petition claims of the IRS will be discharged upon completion of the plan pursuant to 11 U.S.C. § 1328. The chapter 13 plan provided that the IRS would receive no payments on the pre-petition 1983 Personal Liability claim. A confirmed plan denying the IRS payment is binding. See Ledlin v. United States (In re Tomlan), 102 B.R. 790 (E.D.Wash. 1989), aff'd 907 F.2d 114 (9th Cir.1990). Thus the 1983 Personal Liability will be discharged pursuant to § 1328(a) when the plan is fully paid. B. 1984 Personal Liability The status of the 1984 Personal Liability is far more complicated. The debtors maintain that the portion of the 1984 Personal Liability accrued before December 3, 1984, is a pre-petition debt. As such, they argue, the pre-December 3, 1984, portion is discharged by' the IRS’ failure to file a claim under both 11 U.S.C. § 502 and Bankruptcy Rule 3002(a). The IRS responds that the 1984 Personal Liability is post-petition debt not incurred by the debtors until the 1984 tax year closed on December 31, 1984. The two positions advanced mirror the two major theories used to determine the pre or post-petition status of a tax. One line of cases fixes a tax claim based on when the income is earned on which the tax is applied. Under this theory, the status of a tax in bankruptcy is predicated upon the date the tax is incurred, not when assessed. See In re Overly-Hautz Co., 57 B.R. 932, 937 (Bankr.N.D.Ohio 1986); In re Davidson Lumber Co., 47 B.R. 597, 598-99 (Bankr.S.D.Fla.1985); In re Scrap Disposal, Inc., 24 B.R. 178, 180 (Bankr.S.D.Cal-if. 1982). In contrast, another line of cases hold that the key triggering device is when a tax is due. See United States v. Ripley (In re Ripley), 926 F.2d 440, 448 (5th Cir. 1991); In re Gonzalez, 112 B.R. 10, 12 (Bankr.E.D.Tex.1989); In re Starkey, 49 B.R. 984, 987 (D.Colo.1984). This Court believes that the language of the Bankruptcy Code mandates the second rule; the key event is when a tax is due. Section 1305 provides that a government" }, { "docid": "6065999", "title": "", "text": "by the debtor from attaining administrative expense status. In re Lumara Foods of Am., Inc., 50 B.R. 809, 816 (Bankr.N.D.Ohio 1985); In re W.L. Jackson Mfg. Co., 50 B.R. 506, 509 (Bankr.E.D.Tenn.1985). Taxes arising from conduct of the debtor, as opposed to the estate, are prepetition taxes and should not be compensated as an administrative expense of the estate. See United States v. Friendship College, Inc., 737 F.2d 430, 431-32 (4th Cir.1984). Conversely, “post-petition taxes incurred by the estate, although of a kind listed in § 507(a)( [7]), would be granted administrative status.” In re Carlisle Court, Inc., 36 B.R. at 216 (citation omitted). Section 502(i) does not change the court’s analysis. Section 502(i) provides A claim that does not arise until after the commencement of the case for a tax entitled to priority under section 507(a)(7) of this title shall be determined, and shall be allowed under subsection (a), (b), or (e) of this section, or disallowed under subsection (d) or (e) of this section, the same as if such claim had arisen before the date of the filing of the petition. At first blush, § 502(i) seems to require all claims for taxes falling within the definition under § 507(a)(7) to be treated as though they were prepetition claims without regard to when the taxes were incurred. At least one court has held to this effect. In re New England Carpet Co., 26 B.R. 934, 937-38 (Bankr.D.Vt.1983). However, § 502(i) contains an internal limitation precluding this interpretation. It applies only to “a tax entitled to priority under section 507(a)(7).” For a property tax to qualify for such priority, it must be “assessed before the commencement of the case.” 11 U.S.C. § 507(a)(7)(B). Thus, § 502(i) has no application to a property tax “assessed” or “incurred” after the commencement of the case. Furthermore, as this court explained in Carlisle, If § 502(i) is read to relegate all post-petition tax claims of the kind described in § 507(a)( [7]) to pre-petition status, ... the statutory language in § 503(b), excluding taxes of a kind specified in § 507(a)( [7]) and" }, { "docid": "18803968", "title": "", "text": "increased tax liability was estimated to be $193.46. This tax was actually assessed on March 24, 1986. See IRS proof of claim filed June 4, 1986. The FUTA tax liabilities were assessed approximately one to two and one-half months before the supplemental claim was filed. The issue presented is whether the supplemental claim of the IRS for FUTA tax liability filed after the claims bar date should be allowed as an amendment to the timely-filed IRS claim for FICA and with holding tax liability. The issue is not a new one, and two lines of authority have emerged. See In re Overly-Hautz Co., 57 B.R. 932, 936 (Bankr.N.D.Ohio 1986) which cites Menick v. Hoffman, 205 F.2d 365 (9th Cir.1953) and In re Emerald Green Corp., 2 B.C.D. (CRR) 938 (Bankr.E.D.N.Y.1976) for the liberal view, and United States v. International Horizons, Inc. (In re International Horizons, Inc., 751 F.2d 1213 (11th Cir.1985) for the conservative view. In allowing the amended proof of claim for corporate income tax filed one day after the bar date, and preceded by two claims for withholding tax and social security tax, the court in Emerald Green placed reliance upon the prior tax claims as being of the “same genre” as the amended claim, and falling “within the matrix of an indebtedness” due the federal government in “their revenue collection function.” 2 B.C.D. (CRR) at 939. See also, Menick, 205 F.2d 365. Earlier courts have analyzed the al-lowability of a late-filed claim as an amended claim under Rule 715 of the former Rules of Bankruptcy Procedure which incorporated Rule 15 of the Federal Rules of Civil Procedure. The test applied was whether the claim arose out of the same conduct, transaction or occurrence set forth in the prior, timely-filed claims. See International Horizons, 751 F.2d at 1215. Bankruptcy Rule 715 is no longer applicable. This court adopts the liberal view, and concludes that based upon the unique facts of this case, and after balancing the equities as enumerated in In re Miss Glamour Coat Co., 80-2 U.S.T.C. ¶ 9737 (S.D.N.Y. Oct. 8, 1980) [Available on WESTLAW, DCTU" }, { "docid": "12843589", "title": "", "text": "a kind” as used in Code § 503(b)(1)(B) is not the operationally significant term for construing the relationship between section 503(b) and section 507(a)(6). Instead, the court adopted the government’s position and construed taxes “for which the debtor is liable” under section 507(a)(6)(C) to mean pre-petition tax liabilities as distinct from taxes “incurred by the estate” under section 503(b)(l)(B)(i) which “necessarily means post-petition liabilities, since by definition there can be no bankruptcy estate until the petition is filed.” United States v. Friendship College, Inc., supra, 731 F.2d at 431. The court accordingly held that claims based upon post-petition withholding taxes are entitled to an administrative priority under section 503(b)(1)(B). In other cases where debtors have advanced similar arguments, the results have been the same. See In re W.J. Jackson Mfg. Co., 50 B.R. 506, 509-10 (Bankr.E.D.Tenn.1985); In re St. Louis Freight Lines, Inc., 45 B.R. 546 (Bankr.E.D.Mich.1984); In re EMC Industries, Inc., 27 B.R. 696 (Bankr.D.S.C.1983) (taxes due South Carolina Tax Commission). See also In re Westholt Mfg., Inc., 20 B.R. 368, 370-1 (Bankr.D.Kans.1982), aff'd sub nom. United States v. Redmond, 36 B.R. 932 (Bankr.D.Kans.1984). Accord In re Davidson Lumber Co., 47 B.R. 597 (Bankr.S.D.Fla.1985); In re Scrap Disposal, Inc., 24 B.R. 178 (Bankr.S.D.Cal.1982), aff'd on other grounds, 38 B.R. 765 (Bankr.B.A.P. 9th Cir.1984). The debtor argues that the absence of a pre-petition limitation in Code § 507(a)(6)(C) is a significant indication of congressional intent when compared with the limitations to be found in subsections (a)(6)(A)(i) and (ii), and (a)(6)(B). I disagree. As the court concluded in Friendship College, Inc., supra, 37 F.2d at 432: Other sections of § 507(a)(6) give sixth priority to other types of taxes. All of these other sections, however, apply almost entirely, if not entirely, to pre-petition taxes. Thus the context of § (C) suggests that it too would apply only to pre-petition taxes, and since the estate is no longer a “debtor,” the language of the section supports the government. If Congress had intended for the estate to be affected by that section, it would have used the word “estate,” as it did in" }, { "docid": "19284155", "title": "", "text": "at the time the claim was paid, even if the claim was unliquidated, unfixed or contingent. See In re Energy Co-op., Inc., 832 F.2d 997, 1001 (7th Cir.1987); In re Brown Family Farms, Inc., 80 B.R. 404 (Bankr.N.D.Ohio 1987). When determining when a tax claim is incurred for preference purposes, a special rule applies: “A debt for a tax is incurred on the day when such tax is last payable without penalty, including any extension.” 11 U.S.C. § 547(a)(4). In the present case, the Bankruptcy Court concluded that for purposes of § 547, Pullman’s debt was incurred on the date when it first became subject to a penalty for its failure to deposit with a qualified depository institution the taxes it later paid to the IRS. The Government challenges the Bankruptcy Court’s conclusion and asserts that the relevant date for preference purposes was the date that Pullman’s quarterly employment tax return for the first quarter of 1987 was due to be filed — April 30,1987 — , and not the date that a deposit was to be made. According to the Government, because Pullman made the payments in issue before April 30, 1987, the remittances Pullman seeks to recover were not paid on account of an antecedent debt and thus, cannot be recovered as preferential payments. However, as the Bankruptcy Judge Sehmetterer correctly noted, the preference eases which have construed § 547(a)(4) interpret the relevant point to be the date on which the debtor is exposed to penalties, rather than the date the penalty is actually assessed or the date on which the debtor filed its quarterly return. See In re Harvard Mfg. Corp., 97 B.R. 879 (Bankr.N.D.Ohio 1989); In re E & S Comfort, Inc., 92 B.R. 616 (Bankr.E.D.Pa.1988); In re American Int’l Airways, Inc., 83 B.R. 324 (Bankr. E.D.Pa.1988), rev’d on other grounds sub nom., Begier v. Internal Revenue Service, 878 F.2d 762 (3d Cir.1989), aff'd, 496 U.S. 53, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990); In re Greasy Creek Coal Co., 1984 WL 15648, 84-2 U.S. Tax Cases ¶9651 (Bankr.S.D.W.Va. 1984). For example, in American International Aii'ways," }, { "docid": "18580819", "title": "", "text": "equitable considerations weigh heavily in compelling denial of this late amendment of claim which does not create a windfall to other creditors. The supplemental claim, therefore, is not an amendment of the original claim. III. POST-PETITION CLAIM The parties’ briefs raise additional issues concerning the supplemental claim, the majority being rendered nugatory by the decision that the claim is an invalid amendment. There are, however, several issues regarding the alleged post-petition character of the supplemental claim which warrant discussion. IRS argues it should be permitted to file a late claim. Bankruptcy Rule 9006(b) provides when a party moves for an extension of time after expiration of the claim filing period, an extension may be granted only if claimant’s failure to act was the result of excusable neglect. The “excusable neglect” standard requires movant to show that failure to perform was due to circumstances beyond the reasonable control of the person whose duty it was to perform. Biscayne 21 Condominium Association, Inc. v. South Atlantic Financial Corp., 767 F.2d 814 (11th Cir.1985). Since there is no evidence that failure to timely file was the result of excusable neglect, IRS’s attempt to raise this issue by brief fails. IRS maintains the 1982 excise taxes are administrative expenses which is contrary to the unsecured priority status on the supplemental claim. Further, it is contrary to Bankruptcy law. Administrative expenses may include “any tax — incurred by the estate...” 11 U.S.C. § 503(b)(1)(B)(i). Administrative priority status is granted only to taxes incurred by the estate as a necessary cost of preserving the estate. United States v. Redmond, 36 B.R. 932 (D.Kansas 1984). A tax is incurred on the date it accrues, not on the date of assessment or the date it is pay able. Redmond; In re Davidson Lumber Co., 47 B.R. 597 (Bankr.S.D.Fla.1985); and In re Scrap Disposal, Inc., 24 B.R. 178 (Bankr.S.D.Calif.1982), aff’d 38 B.R. 765 (Bankr. 9th Cir.1984). The excise taxes relate to Debtor’s pension plan funding deficiencies for 1982 which accrued December 31, 1982. This is so with the entire claim which includes the tax on the initial funding deficiency" } ]

[ { "docid": "1015551", "title": "", "text": "circumstances did not require the denial of an award thus was not an abuse of discretion. V CALCULATION OF AWARD Section 2412(d)(2)(A)(ii) establishes a cap on the hourly rate awardable under EAJA: [Attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee____ The district court concluded that a fee in excess of $75 per hour was warranted in this case because the litigation was complex and protracted and “[f]ew attorneys possess the special skills and qualifications needed to handle successfully the litigation and settlement activities required by this case.” To determine the proper hourly amount, the court applied the factors approved by this court in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). Based on those factors, it found that an appropriate hourly rate for attorney Patricia Tenoso ranged from $85 per hour in 1976 to $120 per hour in 1981 and that an appropriate hourly rate for attorney Mary Burdick ranged from $80 per hour in 1976 to $120 per hour in 1982. These findings were based on prevailing market rates for those years and on each attorney’s experience. We have recently indicated that the consideration of Kerr factors is appropriate in determining the amount of fees to be awarded under the EAJA. Save Our Ecosystems v. Clark, 747 F.2d 1240, 1251 (9th Cir.1984). See also Action on Smoking & Health v. Civil Aeronautics Board, 724 F.2d 211, 218 (D.C.Cir.1984) (factors such as the contingent nature of success, delay in payment, and quality of representation constitute “special factors” under the EAJA). The district court found that an hourly rate in excess of $75 was justified by several special factors, including the novelty and difficulty of the issues, the contingent nature of the fee, the undesirability of the case, the expertise of counsel, the amount involved and the results obtained," } ]

[ { "docid": "2469141", "title": "", "text": "their disagreement to the single question of whether plaintiff should be reimbursed for the amounts paid by it as expert witness fees. DISCUSSION Section 1988 provides 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,” 42 U.S.C. § 1988, in federal civil rights actions. This and other federal statutes which allow for a fee-shifting arrangement have spawned an enormous amount of case law to guide the courts in determining when to award attorney’s fees and in what amounts. A. The Lodestar Amount The relevant starting point in determining the fee award is the “lodestar” amount, which is reached by multiplying the number of hours reasonably spent on the litigation times a reasonable hourly rate. See Pennsylvania, 106 S.Ct. 3088, 3097; Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir.1987). The Ninth Circuit imposes the additional requirement that the fee award reflect consideration of the factors developed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir.1975), cert. denied, sub nom., Perkins v. Screen Extras Guild, Inc., 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). Those factors are the following: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. 526 F.2d at 70. Nonetheless, the Ninth Circuit has also followed the Supreme Court’s view that “ ‘many of these factors usually are subsumed’ within the lodestar calculation.” Jordan, 815 F.2d at 1262 (quoting Pennsylvania, 106 S.Ct. at 3098). Furthermore, the Ninth Circuit does not restrict the" }, { "docid": "23660142", "title": "", "text": "U.S.C. § 2412(b), which sets no dollar cap on recoverable attorney’s fees. Id. at 449. We review the district court’s fee award under an abuse of discretion standard, while reviewing issues concerning the proper interpretation of the EAJA de novo. LaDuke v. Nelson, 762 F.2d 1318, 1333 (9th Cir.1985), modified, 796 F.2d 309 (9th Cir.1986). In interpreting the statute, we must bear in mind that waivers of federal sovereign immunity are strictly construed and must be explicitly and unequivocally expressed. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 3278, 77 L.Ed.2d 938 (1983); Auke Bay Concerned Citizen’s Advisory Council v. Marsh, 779 F.2d 1391, 1392-93 (9th Cir.1986). In enacting a specific ceiling on hourly fees, Congress’ goal was “to provide full market compensation for successful litigants while, at the same time, containing costs.” Action on Smoking and Health v. C.A.B., 724 F.2d 211, 217 (D.D.C.1984) [hereinafter “ASH”]. A. Special Factors In Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976), we listed factors to be considered in determining reasonable attorney’s fees. These factors are: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Although these factors were not originally designed for deciding when the $75 standard under the EAJA should be exceeded, we have held their application proper in that context. See Underwood, 761 F.2d at 1347. The Supreme Court, however, has granted certiorari in Underwood to review issues related to the nature of special factors that justify" }, { "docid": "2469142", "title": "", "text": "cert. denied, sub nom., Perkins v. Screen Extras Guild, Inc., 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). Those factors are the following: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. 526 F.2d at 70. Nonetheless, the Ninth Circuit has also followed the Supreme Court’s view that “ ‘many of these factors usually are subsumed’ within the lodestar calculation.” Jordan, 815 F.2d at 1262 (quoting Pennsylvania, 106 S.Ct. at 3098). Furthermore, the Ninth Circuit does not restrict the district court’s review of the fee request to the Kerr factors. See Chalmers v. City of Los Angeles, 796 F.2d 1205, 1211 (9th Cir.1986), modified, 808 F.2d 1373 (1987). “What remains important is that the district court articulate with sufficient clarity the manner in which it makes its determination of a reasonable hourly rate and the number of hours which should reasonably be compensated.” Id. at 1211 (citation omitted). There is a “ ‘strong presumption’ ... that the lodestar figure represents a ‘reasonable’ fee_” Jordan, 815 F.2d at 1262 (citing Pennsylvania, 106 S.Ct. at 3098). It is because of the heavy presumption of reasonableness that the lodestar figure must be scrutinized by the court to determine whether the hourly rate and number of hours are reasonable. Consequently, a critical inquiry in determining a reasonable attorneys’ fee for purposes of § 1988 is the reasonable hourly rate.... The fee applicant has the burden of producing satisfactory evidence.... If the applicant satisfies its burden of showing that the claimed rate and number of hours are reasonable, the" }, { "docid": "20341250", "title": "", "text": "costs with the Clerk’s office. The factors a court is to consider when determining the amount of attorney’s fees to award a party were enunciated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir.1975), cert, denied, 425 U.S. 951, 96 S.Gt. 1726, 48 L.Ed.2d 195 (1976). The factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to performing the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the profes sional relationship with the client; and (12) awards in similar cases. These factors have been deemed redundant and imprecise and thus are not rigidly applied. See Copeland v. Marshall, 641 F.2d 880, 890 (D.C. Cir.1980) (en banc). Instead, several courts have employed an alternate approach to calculating fee awards termed “lodestar.” This entails the calculation of a “lodestar” figure determined by multiplying the number of hours reasonably expended by counsel and the reasonable hourly rate prevailing in the community for comparable legal services. Once the lodestar figure is determined, the fee applicant may request an adjustment of the lodestar. See National Ass’n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1328 (D.C.Cir. 1983) (per curiam). Counsel for the Intervenors do not seek a multiplier in this case. The Ninth Circuit “has yet to directly approve the use of straight lodestar analysis.” Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 840 (9th Cir.1982). Rather, the Circuit has approved of an approach combining the best features of both the lodestar analysis and the factors enunciated in Kerr v. Screen Extras Guild, supra. Id. Under this standard, the initial step in fixing an award of attorney’s fees is to determine the number of hours" }, { "docid": "23317296", "title": "", "text": "its discretion. 2.Amount of Attorney’s Fees When it sets a fee, the district court must first determine the presumptive lodestar figure by multiplying the number of hours reasonably expended on the litigation by the reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Next, in appropriate cases, the district court may adjust the “presumptively reasonable” lodestar figure based upon the factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir.1975) (Kerr), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976), that have not been subsumed in the lodestar calculation. D’Emanuele v. Montgomery Ward & Co., Inc., 904 F.2d 1379, 1383 (9th Cir.1990). The Kerr factors are: 1. The time and labor required; 2. The novelty and difficulty of the questions; 3. The skill requisite to perform the legal services properly; 4. The preclusion of other employment due to acceptance of the case; 5. The customary fee; 6. The contingent or fixed nature of the fee; 7. The limitations imposed by the client or the case; 8. The amount involved and the results obtained; 9. The experience, reputation, and ability of the attorneys; 10. The undesirability of the case; 11. The nature of the professional relationship with the client; 12. Awards in similar cases. Kerr, 526 F.2d at 70. The lodestar amount presumably reflects the novelty and complexity of the issues, the special skill and experience of counsel, the quality of representation, and the results obtained from the litigation. D’Emanuele, 904 F.2d at 1383. “The fee applicant has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services.... If the applicant satisfies its burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee....” Jordan v. Multnomah County, 815 F.2d 1258, 1268 (9th Cir.1987) (footnote and citation omitted). In order to facilitate appellate review, the district court must clearly articulate sound reasons" }, { "docid": "11208501", "title": "", "text": "a reasonable hourly rate.” Starr v. Bowen, 831 F.2d 872, 874 (1987). Once the lodestar amount has been calculated, the court may adjust the amount by considering the twelve factors identified in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975) cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). Straw v. Bowen, 866 F.2d 1167, 1169 (9th Cir.1989). The twelve factors are: 1) the time and labor required, 2) the novelty and difficulty of the questions involved, 3) the skill requisite to perform the legal service properly, 4) the preclusion of other employment by the attorney due to acceptance of the case, 5) the customary fee, 6) whether the fee is fixed or contingent, 7) time limitations imposed by the client or the circumstances, 8) the amount involved and the results obtained, 9) the experience, reputation, and ability of the attorneys, 10) the “undesirability” of the case, 11) the nature and length of the professional relationship with the client, and 12) awards in similar cases. Starr, 831 F.2d at 874. Defendant argues that several Kerr factors have been expressly supplanted to the lodestar calculation. Miller v. Los Angeles County Board of Education, 827 F.2d 617, 620-21 n. 4 (9th Cir.1987); Pierce v. Underwood, 487 U.S. 552, 573, 108 S.Ct. 2541, 2554, 101 L.Ed.2d 490 (1988). Although petitioners do not dispute this, this court finds that all twelve Kerr factors may still be examined. Neither Miller or Pierce were decided under 42 U.S.C. § 406(b). However, in 1989 the Ninth Circuit discussed the applicable standard for approval of attorney fees under 42 U.S.C. § 406(b). Straw v. Bowen, 866 F.2d 1167 (9th Cir.1989). The Ninth Circuit specifically held that the lodestar amount could be adjusted by considering the twelve Kerr factors. Id. at 1169. Thus, all twelve factors can be considered. 2. Calculation of lodestar amount. Defendant concedes that the 22.7 hours claimed by petitioners in this case are reasonable. Defendant indicates that $150.00 is a reasonable hourly rate. Although petitioners note that there is no basis for determining the prevailing rate because all" }, { "docid": "14188370", "title": "", "text": "intent for prompt and efficient dissemination under the Act. The court concludes that an award of fees is necessary to implement the Act. See Nationwide, 559 F.2d at 715. Accordingly, plaintiff is entitled to an award of attorney’s fees at this time. IV. The Award in this Case [7,8] The determination of a reasonable fee is accomplished by consideration of the twelve factors enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), and application of the lodestar and multiplier format developed by the Third Circuit, Lindy Bros. Builders Inc. v. American Sanitary Corp., 487 F.2d 161 (3d Cir.1973) (Lindy I), 540 F.2d 102 (3d Cir.1976) (Lindy II). See Manhart v. City of Los Angeles, Dept. of Water and Power, 652 F.2d 904, 907 (9th Cir.1981); Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976); Brandenburger v. Thompson, 494 F.2d 885, 890 n. 7 (9th Cir.1974). In Jordan v. United States Dept. of Justice, 691 F.2d 514, 517-18 (D.C. Cir.1982), the Court of Appeals for the District of Columbia specifically adopted this standard for FOIA cases. Initially, the court calculates the lodestar amount by multiplying the hours reasonably expended by a reasonable rate. The reasonableness of the hours and rate are determined by consideration of the twelve Johnson factors: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Kerr, 526 F.2d at 70. However, only those factors actually applicable to the individual case need be considered. Keith v." }, { "docid": "22919245", "title": "", "text": "both the amount of the award and the apportionment. We affirm. It is well-settled that the award of attorneys’ fees is a matter within the discretion of the trial court, and that an award of attorneys’ fees cannot be disturbed on appeal, absent a showing of abuse of discretion. See, e. g., Jacobsen v. Rose, 592 F.2d 515 (9th Cir. 1978); Fountila v. Carter, 571 F.2d 487 (9th Cir. 1978); Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974); Transport Manufacturing & Equipment Company v. Fruehauf Trailer Company, 295 F.2d 223 (8th Cir. 1961). We see no reason why this standard should not apply in cases of this nature. The factors to be taken into account in fixing the size of the award were enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Following Disciplinary Rule 2-106 of the Code of Professional Responsibility of the American Bar Association, Georgia Highway Express mandated that courts consider the following in fixing attorney’s fee awards: (1) the time and labor required; (2) the novelty and difficulty of the questions presented; (3) the skill requisite to perform the legal services properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 488 F.2d 714, 717, 718, 719. Failure to follow these guidelines constitutes an abuse of discretion. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). Application of these factors will necessarily vary from case to case. A key factor" }, { "docid": "11541788", "title": "", "text": "(9th Cir.1992) (“An award of attorney’s fees pursuant to section 1447(c) ... is within the discretion of the district court, and bad faith need not be demonstrated.”). The Ninth Circuit requires a district court to calculate an award of attorneys’ fees by first calculating the “lodestar.” See Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014, 1028 (9th Cir.2000). The lodestar is “calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate.” Id. (citing Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir.1996)). After computing the lodestar, the district court is to assess whether additional considerations enumerated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976), require the court to adjust the figure. Caudle, 224 F.3d at 1028. The Kerr factors include: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skills requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Kerr, 526 F.2d at 69-70. Plaintiffs seek attorneys’ fees for 23 hours of work researching and drafting Plaintiffs’ motion to remand and an additional 7 hours preparing the reply, at an hourly billing rate of $215. Defendant argues that the Court should consider the novelty and difficulty of Section 301 preemption law and the fact that Defendant had a supportable basis for its removal. Defendant also argues that Plaintiffs have not adequately addressed the Kerr factors or provided detail as to the work performed, and that Plaintiffs’ attorneys’ billing rate of $215 per hour for a" }, { "docid": "14182250", "title": "", "text": "Guidelines The Court of Appeals for the Ninth Circuit has set forth twelve factors or guidelines which a district court should consider in awarding attorney fees. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70, (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). The Court summarized these factors in Moore, 682 F.2d at 838: ... (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill necessary to perform the legal services properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the ‘undesirability’ of the case, (11) the nature and length of the professional relations with the client, and (12) awards in similar cases.... The Moore court pointed out the obvious fact that not all of these guidelines will be applicable in every case. However, the Court remanded in Moore because “the record on appeal fail[ed] to indicate which, if any, of the Kerr guidelines were considered”. Id., at 838-39. Accordingly, the record will be reviewed in light of each guideline. Thereafter “the relatively objective lodestar figure” will then be “adjusted based on the quality and risk involved in counsel’s efforts”. Id., at 840. Guideline considerations are as follows: (1) The time and labor required — I have earlier concluded that both the Antitrust Division and Special Counsel charged excessive time to this proceeding. The reasons for this may be many. There is a lack of motivation for an antitrust division of a state attorney general’s office to handle a case from a time standpoint like an attorney in private practice. There is little, if any, client review or concern about attorney time or expenses during the course of the proceeding. Attorneys specializing in antitrust practice are in a similar situation. Again, their clients are ordinarily one or more public" }, { "docid": "11210047", "title": "", "text": "award unjust, an attorney fee award should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee ... We explained that the purpose behind statutory fee authorizations — i.e., encouraging attorneys to act as private attorneys general and to vindicate important rights affecting the public interest — “will often be frustrated, sometimes nullified, if awards are diluted or dissipated by lengthy, uncompensated proceedings to fix or defend a rightful fee claim.” X. Bases for Plaintiffs Attorney Fee Hourly Rates A. Standards for setting an attorney’s reasonable hourly rate are met by Plaintiffs attorneys’ Declarations, supporting Declarations, and prior court awards In determining Plaintiffs counsel’s reasonable hourly rate, the Court must take into account the following factors: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Morales v. City of San Rafael, 96 F.3d 359, 363 FN. 8 (9th Cir.1996) (citing Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975) cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976)). As stated by the Court in Lindy Bros. Builders v. American Radiator, 540 F.2d 102, 117 (3rd Cir.1976): “As a first principle, the court must recognize that a consideration of ‘quality’ inheres in the ‘lodestar’ award: counsel who possess or who are reputed to possess more experience, knowledge and legal talent generally command hourly rates superior to those who are less endowed.” The Ninth Circuit reached a similar conclusion: Plaintiffs attorneys are entitled to be compensated at rates that reflect the reasonable market value of their" }, { "docid": "14182249", "title": "", "text": "in private practice, I approve the following hourly rates for the named individuals: Atty. 1980 1981 1982 1983 Reed 140 150 160 160 Goldstein 80 80 100 100 Jenkins-Reed 80 100 100 Wischkaemper 100 100 Morris 70 Atty. 1980 1981 1982 1983 Cooper 125 Connors 70 Paralegal Lawton 35' 35 Crowley 30 30 Holland 30 30 Morris and Cooper are San Francisco attorneys Reed had prepare a first draft of the State's Reply Memorandum regarding the form of Injunction to be entered after remand. Assuming Special Counsel’s staff .was not available or adequate for this purpose, there is no demonstrated reason why the State Antitrust Division was not available for this purpose. Accordingly, rates approved for State staff members will be utilized for Cooper and Morris. The time entries related to preparing and filing this 14 page Memorandum total more than 60 hours. I think this time is excessive and is yet another indication of the fact that little judgment appears to have been exercised to keep unnecessary and duplicative time to a minimum. Kerr Guidelines The Court of Appeals for the Ninth Circuit has set forth twelve factors or guidelines which a district court should consider in awarding attorney fees. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70, (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). The Court summarized these factors in Moore, 682 F.2d at 838: ... (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill necessary to perform the legal services properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the ‘undesirability’ of the case, (11) the nature and length of the professional relations with the client, and (12) awards in similar cases.... The Moore court pointed out the obvious fact that not all" }, { "docid": "9000349", "title": "", "text": "of San Francisco, 859 F.2d 649 (9th Cir.1988), Cabrales v. County of Los Angeles, 864 F.2d 1454 (9th Cir.1988), D’Emanuele v. Montgomery Ward & Co., Inc., 904 F.2d 1379 (9th Cir.1990) , Corder v. Gates, 947 F.2d 374 (9th Cir.1991), and Bernardi v. Yeutter, 951 F.2d 971 (9th Cir.1991). The thrust of these pre-Dague cases was as follows. Before Hensley, the cases suggested that a “reasonable” attorney’s fee award was to be determined by reference to the so-called “Johnson factors,” from Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). These factors were referred to in the Senate Report on the Civil Rights Attorney’s Fees Awards Act of 1976 (the statute enacting Section 1988), S.Rep. No. 94-1011 (1976), reprinted in 1976 U.S.C.C.A.N. 5908, and the Ninth Circuit adopted them in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). The Johnson factors are: (1) The time and labor required ... (2) The novelty and difficulty of the questions ... (3) The skill requisite to perform the legal service properly ... (4) The preclusion of other employment by the attorney due to acceptance of the case ... (5) The customary fee ... (6) Whether the fee is fixed or contingent ... (7) Time limitation imposed by the client or the circumstances ... (8) The amount involved and the results obtained ... (9) The experience, reputation, and ability of the attorneys ... (10) The “undesirability” of the case ... (11) The nature and length of the professional relationship with the client ... (12) Awards in similar cases. Johnson, 488 F.2d at 717-19. At the time Section 1988 was adopted, however, another method of calculating “reasonable fees” coexisted with the Johnson factors analysis. That other method was simply multiplying the number of hours reasonably expended on the matter by a reasonable hourly rate. The product of that multiplication has come to be known as the “lodestar.” In Hensley v. Eckerhart, the Supreme Court attempted to reconcile the two strands of analysis, holding that the lodestar is" }, { "docid": "23083212", "title": "", "text": "the motion to defendants. 4. Reasonableness of Attorneys’Fees An essential inquiry in the matter of sanctions is into the reasonableness of the claimed fees. Matter of Yagman, 796 F.2d 1165, 1185 (9th Cir.1986), modified, 803 F.2d 1085 (9th Cir.1986). The factors involved in evaluating attorneys’ fees are: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). There is no need to rigidly apply all of the Kerr factors, but the court must make some evaluation of the fee breakdown submitted by counsel. Yagman, supra, 796 F.2d at 1185; Orange Production Credit v. Frontline Ventures Ltd., 792 F.2d 797, 801 (9th Cir.1986). Defendant’s counsel request an award of fees and costs incurred in responding to both the motion to alter or amend and the motion for leave to file an amended complaint, in the amounts of $20,987.00 and $814.00, respectively. The court earlier declined to impose sanctions for the motion for leave to file an amended complaint, and adheres to that decision. Defendant’s counsel represent that, with respect to the motion to alter or amend alone, defendant incurred $11,910.00 in fees. This represents 61.2 hours of partners’ time at $150.00 per hour, 12.5 hours of associate’s time at $85.00 per hour, and 22.25 hours of paralegal’s time at $75.00 per hour. Actually, the court calculates that counsel is short-changing himself by $1.25, but will accept his figure. The time and effort spent were" }, { "docid": "4438395", "title": "", "text": "Board, 724 F.2d 211, 217 (D.C.Cir.1984). In determining whether a “special factor” justifies an hourly rate of more than $75.00/hour, the Ninth Circuit recently held that it is proper for the court to apply the factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied sub. nom., Perkins v. Screen Extras Guild, Inc., 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). Underwood v. Pierce, 761 F.2d 1342, 1347 (9th Cir.1985). The twelve Kerr factors are 1) the time and labor required, 2) the novelty and difficulty of the questions, 3) the skill requisite to perform the legal service properly, 4) the preclusion of employment by the attorney due to acceptance of the case, 5) the customary fee, 6) whether the fee is fixed or contingent, 7) time limitations imposed by the client or the circumstances, 8) the amount involved and the results obtained, 9) the experience, reputation, and ability of the attorneys, 10) the undesirability of the ease, 11) the nature and length of the professional relationship with the client, and 12) awards in similar cases. Kerr, supra, 526 F.2d at 70. In Underwood, supra, the Ninth Circuit upheld the district court’s award of hourly rates ranging from $80 per hour for work in 1976 to $120 per hour for work in 1982 in light of several special factors including •the novelty and difficulty of the issues, the contingent nature of the fee, the undesirability of the case, the expertise of counsel, the amount involved and the results obtained, and the customary fees and awards in other cases. Underwood, supra, 761 F.2d at 1347. Petitioner states that, here, there are no special factors justifying a rate of more than $75 per hour. We disagree. The exceptional results obtained, the novelty and difficulty of the questions, and the high quality of the representation warrant an upward adjustment of the $75 per hour rate. See generally, Action on Smoking and Health, supra, 724 F.2d 211. As respondent has documented, the National Labor Relations Board (“NLRB”) prevails in an extremely high percentage of the" }, { "docid": "22417972", "title": "", "text": "Cir.1995). . The twelve Kerr factors bearing on the reasonableness are: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the \"undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). There is a strong presumption that the lodestar figure represents a reasonable fee. \"Only in rare instances should the lodestar figure be adjusted on the basis of other considerations.” Harris v. Marhoefer, 24 F.3d 16, 18 (1994); Oviatt v. Pearce, 954 F.2d 1470, 1482 (9th Cir.1992). Under the lodestar approach, many of the Kerr factors have been subsumed as a matter of law. Cunningham, 879 F.2d at 487. . Among the subsumed factors presumably taken into account in either the reasonable hours component or the reasonable rate component of the lodestar calculation are: \"(1) the novelty and complexity of the issues, (2) the special skill and experience of counsel, (3) the quality of representation, ... (4) the results obtained,” Cabrales v. County of Los Angeles, 864 F.2d 1454, 1464 (9th Cir.1988), reinstated, 886 F.2d 235 (1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1838, 108 L.Ed.2d 966 (1990), and (5) the contingent nature of the fee agreement, City of Burlington v. Dague, 505 U.S. 557, 565-67, 112 S.Ct. 2638, 2643, 120 L.Ed.2d 449 (1992). Adjusting the lodestar on the basis of subsumed reasonableness factors after the lodestar has been calculated, instead of adjusting the reasonable number of hours or reasonable hourly rate at the first step, i.e. when determining the lodestar, is" }, { "docid": "2374917", "title": "", "text": "If the claims are related, the court “should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Id. at 435, 103 S.Ct. at 1940. There are many additional factors which the court may consider in adjusting a fee award. The fact that the Herringtons were pursuing a private property right rather than a broader public goal may be considered in setting the amount of fees. See J. & J. Anderson, Inc., 767 F.2d at 1473 (plaintiff’s pursuit of private property right does not constitute special circumstance warranting denial of fees but may be a factor in determining reasonable amount of fees). The court may consider the fact that this appeal was merely a continuation of work done at trial, rather than a new action, and may adjust fees accordingly. Suzuki, 678 F.2d at 763. The court also may consider the quality of the appellate briefs and the complexity of issues on appeal. Id. In addition, the court must consider the twelve factors enumerated in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974). Failure to consider these factors constitutes an abuse of discretion. Suzuki, 678 F.2d at 763 (citing Kerr v. Screen Extras Guild, 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976)). These factors are: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Kerr, 526 F.2d at 70. The County challenges as excessive and unreasonable the rate of the senior partner" }, { "docid": "2374918", "title": "", "text": "enumerated in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974). Failure to consider these factors constitutes an abuse of discretion. Suzuki, 678 F.2d at 763 (citing Kerr v. Screen Extras Guild, 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976)). These factors are: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Kerr, 526 F.2d at 70. The County challenges as excessive and unreasonable the rate of the senior partner in charge of this litigation, which was set at $250 per hour. A reasonable hourly rate should reflect the cost of competent counsel in the field, rather than providing a windfall to plaintiffs’ counsel at the expense of the defendant. H.R.Rep. No. 1558 at 9. Thus, if the Herringtons have agreed to pay their counsel more than what this court determines to be a reasonable hourly rate, the Herringtons, not the County, are responsible for paying the portion of the rate charged which is in excess of a reasonable fee. See Hamner v. Rios, 769 F.2d at 1409. After examining the evidence presented by both sides regarding prevailing market rates for counsel engaged in this type of litigation and considering the level of skill required to perform this type of work, we conclude that reasonable hourly rates are as follows: $200 per hour for time spent by a senior partner, $150 per hour for time spent by a senior associate, $80 per hour for time spent by a junior associate, and $45 to $50 for" }, { "docid": "17887161", "title": "", "text": "and the Beaudry case, and the overwhelming evidence of Fairchild’s bad faith in completely disregarding Rogerson’s rights under the duct and controller contract, the Court will award Rogerson its attorneys fees and expert witness fees. Rogerson has requested that it be awarded $748,882.56 in attorneys fees and $164,686.00 in expert witness fees for its expert accountant witness. In Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976), the Ninth Circuit set forth twelve factors that must be considered in determining the reasonableness of an award of attorneys fees: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 526 F.2d at 70. Evaluating Rogerson’s fee request in light of the twelve Kerr factors, the Court finds the amount of $748,882.56 for attorneys fees sought by Rogerson to be reasonable. In particular, the Court notes that the legal and factual issues presented in this case were difficult ones, especially because of the complex technical and accounting issues to be resolved and the voluminous number of documents involved. The Court also notes that Rogerson’s attorneys, as well as Fairchild’s attorneys, were highly qualified and exhibited great skill and preparedness in presenting the evidence and issues. Finally, it should also be emphasized that the hours expended by Roger-son’s attorneys, and the rates at which such time was billed, as set forth in Roger-son’s detailed application for attorneys fees, were very reasonable in light of the protracted nature of this litigation, the results ultimately obtained, and the" }, { "docid": "4438394", "title": "", "text": "rate multiplied by the number of hours reasonably expended by counsel. See Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984). Petitioner objects to the hourly rates requested ($85.00/hour for attorneys Matthew Ross and Victoria Chin, and $25.00/hour for law clerks) and contends that an unreasonable number of hours were spent on certain tasks. Petitioner further contends that respondent should not be compensated for briefing on the Rule 11 issue and that certain hours requested have not been properly documented or do not relate to the instant litigation. A. The Hourly Rate Section 2412(d)(2)(A)(ii) provides that “[Attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee....” “In enacting this fee limitation, Congress attempted to provide full market compensation for successful litigants while at the same time, containing costs.” Action on Smoking and Health v. Civil Aeronautics Board, 724 F.2d 211, 217 (D.C.Cir.1984). In determining whether a “special factor” justifies an hourly rate of more than $75.00/hour, the Ninth Circuit recently held that it is proper for the court to apply the factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied sub. nom., Perkins v. Screen Extras Guild, Inc., 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). Underwood v. Pierce, 761 F.2d 1342, 1347 (9th Cir.1985). The twelve Kerr factors are 1) the time and labor required, 2) the novelty and difficulty of the questions, 3) the skill requisite to perform the legal service properly, 4) the preclusion of employment by the attorney due to acceptance of the case, 5) the customary fee, 6) whether the fee is fixed or contingent, 7) time limitations imposed by the client or the circumstances, 8) the amount involved and the results obtained, 9) the experience, reputation, and ability of the attorneys, 10) the undesirability of the ease, 11) the nature and length of the professional" } ]

[ { "docid": "22700518", "title": "", "text": "railroad. The Commission found, • upon evidence fully warranting the finding, that he was on duty at the time, and at a place not outside of the limits prescribed for the performance of his duties; that he was not engaged in interstate commerce; and that the injury received by him and resulting in his' death was an accidental injury arising out of and in the course of his employment. The admitted fact that the new station and tracks were designed for use, when finished, in interstaté commerce does not bring the case within the federal act. The test is, “Was the employé at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?” Shanks v. Delaware, Lackawanna & Western R. R. Co., 239 U. S. 556, 558. Decedent’s work bore no direct relation to interstate transportation, and had to do solely with construction work, which is clearly distinguishable, as was pointed out in Pedersen v. Delaware, Lackawanna & Western R. R. Co., 229 U. S. 146, 152. And see Chicago, Burlington & Quincy R. R. Co. v. Harrington, 241 U. S. 177, 180; Raymond v. Chicago, Milwaukee & St. Paul Ry. Co.; this day decided, ante, 43. The first point, therefore, is without basis in fact. We turn to the constitutional question. The Workmen’s' Compensation Law of New- .York establishes 42 groups of hazardous employments, defines “employee” as a person engaged in one of these employments upon the premises or at the plant or in the course of his employment away from the plant of his employer, but excluding farm laborers and domestic servants; defines “employment” as including employment only in a trade, business, or occupation carried on by the employer for pecuniary gain, “injury” and “personal injury” as meaning only accidental injuries arising out of and in the course of employment, and such disease or infection as naturally and unavoidably may result therefrom; and requires evéry employer subject to its provisions to pay or provide compensation according to a prescribed schedule for the disability" } ]

[ { "docid": "22545271", "title": "", "text": "Bezue cases. Such an unbalanced application of the statute is contrary to its purpose of affording coverage broadly “throughout the farthest reaches of the channels of interstate commerce” to employees “engaged in commerce.” The judgment should be reversed. Mr. Justice Black, Mr. Justice Douglas and Mr, Justice Rutledge join in this dissent. Act of April 22, 1908, 35 Stat. 65, as it was before the amendment of 1939, 53 Stat. 1404. 45 U. S. C. § 51 et seq. The application of the Fair Labor Standards Act, of course, depends upon the character of the employees’ activities, not the nature of the employer’s business. Overstreet v. North Shore Corp., 318 U. S. 125, 132, and cases cited. Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 558; Chicago & North Western Ry. Co. v. Bolle, 284 U. S. 74; Chicago & Eastern Illinois R. Co. v. Commission, 284 U. S. 296; New York, N. H. & H. R. Co. v. Bezue, 284 U. S. 415. The Act defines “commerce” as: “trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof.” 52 Stat. 1060, 29 U. S. C. § 203. See Chicago & North Western Ry. Co. v. Bolle, 284 U. S. 74, 78. 239 U. S. 556. 284 U. S. 74. 284 U. S. 296. 284 U. S. 415. Overnight Motor Co. v. Missel, 316 U. S. 572. Overstreet v. North Shore Corp., 318 U. S. 125. This is discussed wholly apart from the question of the applicability of § 7 because of the exemption contained in § 13 (b) (1) of the Act. See Southland Gasoline Co. v. Bayley, ante, p. 44. Cf. Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556. Cf. Chicago & North Western Ry. Co. v. Bolle, 284 U. S. 74. Cf. Chicago & Eastern Illinois R. Co. v. Commission, 284 U. S. 296. Cf. New York, N. H. & H. R. Co. v. Bezue, 284 U. S. 415. Employees cooking for workers engaged in the production of goods for" }, { "docid": "8107056", "title": "", "text": "the trial court. See Gospel Army v. Los Angeles, 331 U. S. 543, 546. Since the issues of negligence and damages remain to be tried, there is no final judgment in the highest court of the State, and this Court, therefore, lacks jurisdiction to review the Eufrasia and Eelk cases. 28 U. S. C. § 1257. We therefore dismiss the writs in those two cases. The sole question which the Gileo case presents is whether or not an employee of an interstate rail carrier who is injured while performing work on new cars to be used in interstate commerce by the carrier and its subsidiary can maintain an action for damages against his employer under the F. E. L. A., as amended. Section 1 of the F. E. L. A., with which we are here concerned, originally provided that “every common carrier by railroad while engaging in commerce” between the States “shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce” for injury or death resulting wholly or partly from the negligence of the carrier. This Court early construed the statute to require that the employee be “at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it” in order to qualify for coverage under the Act. Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 558. Later, in Raymond v. Chicago, M. & St. P. R. Co., 243 U. S. 43, 45, and New York Central R. Co. v. White, 243 U. S. 188, 192, this Court held that employees engaged in or connected with new construction for their railroad employers were not engaged in interstate commerce within the meaning of the Act and were therefore not entitled to its benefits. See also Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 152. The “moment of injury” and “new construction” doctrines were the source of much confusion to the railroads, their employees and the courts, with the result" }, { "docid": "22577154", "title": "", "text": "turning a turntable; but his employment at the time of the injury was confined to firing the stationary or locomotive engine for the Sole purpose of producing steam. The charapter of the work which he did at other times, therefore, becomes immaterial. Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 558; Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177, 179. The action was brought under the Federal Employers’ Liability Act (c. 149, 35 Stat. 65; Title 45, c. 2, U. S. C.) to recover damages for the injury. There have been three trials of the case. In the first the verdict and judgment was for the respondent, which upon appeal was reversed by the intermediate appellate court, upon the ground that the evidence\" failed to show that respondent was engaged in interstate commerce when injured. 235 Ill. App. 380. This judgment of the appellate court was reversed by the supreme court. 324 Ill. 479; 155 N. E. 287. After remand, there was another trial,-resulting in a directed verdict and judgment for petitioner; and this judgment the appellate court, following the decision of the supreme ■court of the state, reversed. 251 Ill. App. 623. Upon the third trial, judgment upon a verdict was entered in favor of the respondent. This the appellate court affirmed, 258 Ill. App. 545, and the supreme court refused certiorari to review the cause. The appellate court, in holding upon the first appeal that respondent was not engaged in interstate commerce, applied the rule laid down in the Shanks case, supra; and in so doing was clearly right. The railroad company which was sued in the Shanks case maintained a large machine shop for repairing locomotives used in both interstate and intrastate traffic. ■While employed in this shop, Shanks was injured through the negligence of the company. Usually he was employed in repair work, but on the occasion of the injury he was engaged solely in taking down, and putting into a new location, an overhead countershaft through which power was communicated to some of the machinery used in" }, { "docid": "22347150", "title": "", "text": "commerce as to be in practice and in legal contemplation a part of it.” Id. at p. 151. See also Philadelphia, B. & W. R. Co. v. Smith, 250 U. S. 101; Southern Ry. Co. v. Puckett, 244 U. S. 571; New York Cent. R. Co. v. Porter, 249 U. S. 168; Kinzell v. Chicago, M. & St. P. Ry. Co., 250 U. S. 130; Southern Pacific Co. v. Industrial Accident Comm’n, 251 U. S. 259; Philadelphia & Reading Ry. Co. v. Di Donato, 256 U. S. 327; Rader v. Baltimore & Ohio R. Co., 108 F. 2d 980. Compare Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556; Chicago & North Western Ry. Co. v. Bolle, 284 U. S. 74; Chicago & Eastern Illinois R. Co. v. Commission, 284 U. S. 296. We think that practical test should govern here. Vehicular roads and bridges are as indispensable to the interstate movement of persons and goods as railroad tracks and bridges are to interstate transportation by rail. If they are used by persons and goods passing between the various States, they are instrumentalities of interstate commerce. Cf. Covington & Cincinnati Bridge Co. v. Kentucky, 154 U. S. 204, 218. Those persons who are engaged in maintaining and repairing such facilities should be considered as “engaged in commerce” even as was the bolt-carrying employee in the Pedersen case, supra, because without their services these instrumentalities would not be open to the passage of goods and persons across state lines. And the same is true of operational employees whose work is just as closely related to the interstate movement. Of course, all this is subject to the qualification that the Act does not consider as an employer the United States or any State or political subdivision of a State, and hence does not apply to their employees. §3(d). The allegations of petitioners’ complaint satisfy this practical test. The road and bridge allegedly afford passage to an extensive movement of goods and persons between Florida and other States, and moreover the drawbridge presents an obstacle to interstate traffic by water" }, { "docid": "1363428", "title": "", "text": "related thereto. The question is: Was defendant, in furnishing medical treatment to plaintiff, and was plaintiff, in seeking and accepting such treatment, engaged in interstate commerce within the meaning of the act? As said by the Supreme Court in Shanks v. D., L. & W. R. .Co., 239 U. S. 556, 558, 36 S. Ct. 188, 189 (60 L. Ed. 436, L. R. A. 1916 C, 797), “What his employment was on other occasions is immaterial, for, as before indicated, the act refers to the service being rendered when the injury was suffered.” It would seem to be too clear for argument that consultation with a physician by an injured employee, and advice and treatment of such employee by the physician, do not constitute engaging in interstate commerce within the meaning of the act. The treatment of the injury is not an aet m furtherance of or incidental to interstate commerce. It is an aet in furtherance of the health of the employee. The health of the employee may be of benefit to interstate commerce, if he remains in the service of the employer; but the connection is entirely too speculative and remote to form the basis of an action under the statute. Shanks v. D., L. & W. R. Co., supra; Erie R. Co. v. Welsh, 242 U. S. 303, 37 S. Ct. 116, 61 L. Ed. 319; Ill. C. R. Co. v. Behrens, 233 U. S. 473, 34 S. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163; D., L. & W. R. Co. v. Yurkonis, 238 U. S. 439; 35 S. Ct. 902, 59 L. Ed. 1397; Ill. Cent. R. Co. v. Cousins, 241 U. S. 641, 36 S. Ct. 446, 60 L. Ed. 1236. And we think, also, that defendant is not liable under the statute for the negligence of the physician, for the reason that the physician is not an “officer, agent or employee,” for whose negligence the company is made liable. He is obviously not an officer or agent; but, as he is employed by the company to treat its employees, the question" }, { "docid": "22577153", "title": "", "text": "and, in accordance with the usual practice, respondent had been making use of a locomotive engine as a substitute. While thus employed he was directed to accompany this locomotive engine to a place about four miles distant to obtain a supply of coal. For that purpose the engine was attached to and moved with three other locomotive engines then being prepared for use in interstate transportation. While coal was being taken upon one of the locomotives, respondent was seriously injured, through what is alleged to have been the negligence of petitioner. The sole object of the movement of the substitute engine was to procure a supply of coal for the purpose of generating steam. Its movement was in no way related to the contemplated - employment of the other three locomotives in interstate transportation; and its use differed in no way from the use of the stationary, engine when that was available. There is evidence that respondent, .at other times, had been engaged in supplying other engines with coal and water, firing live engines, and turning a turntable; but his employment at the time of the injury was confined to firing the stationary or locomotive engine for the Sole purpose of producing steam. The charapter of the work which he did at other times, therefore, becomes immaterial. Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 558; Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177, 179. The action was brought under the Federal Employers’ Liability Act (c. 149, 35 Stat. 65; Title 45, c. 2, U. S. C.) to recover damages for the injury. There have been three trials of the case. In the first the verdict and judgment was for the respondent, which upon appeal was reversed by the intermediate appellate court, upon the ground that the evidence\" failed to show that respondent was engaged in interstate commerce when injured. 235 Ill. App. 380. This judgment of the appellate court was reversed by the supreme court. 324 Ill. 479; 155 N. E. 287. After remand, there was another trial,-resulting in a directed" }, { "docid": "22545270", "title": "", "text": "it” was held to be “necessary to the production of goods for commerce.” 316 U. S. at 525-26. Correspondingly, in Overstreet v. North Shore Corp., we held that the phrase “engaged in commerce” includes work which “is so intimately related to interstate commerce ‘as to be in practice and in legal contemplation a part of it.’ ” 318 U. S. at 130. The purpose of the “production of goods for commerce” phrase was obviously not to cut down the scope of “engaged in commerce,” but to broaden the Act’s application by reaching conditions in the production of goods for commerce which Congress considered injurious to interstate commerce. See United States v. Darby, 312 U. S. 100. The effect of the Court’s decision today, however, is to recognize that federal power over commerce has been sweepingly exercised when an employee’s work is in the production of goods for commerce, but to limit it, when the employee’s activities are in transportation or connected therewith, to the narrow and legislatively repudiated view of the Shanks, Bolle, Commission and Bezue cases. Such an unbalanced application of the statute is contrary to its purpose of affording coverage broadly “throughout the farthest reaches of the channels of interstate commerce” to employees “engaged in commerce.” The judgment should be reversed. Mr. Justice Black, Mr. Justice Douglas and Mr, Justice Rutledge join in this dissent. Act of April 22, 1908, 35 Stat. 65, as it was before the amendment of 1939, 53 Stat. 1404. 45 U. S. C. § 51 et seq. The application of the Fair Labor Standards Act, of course, depends upon the character of the employees’ activities, not the nature of the employer’s business. Overstreet v. North Shore Corp., 318 U. S. 125, 132, and cases cited. Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 558; Chicago & North Western Ry. Co. v. Bolle, 284 U. S. 74; Chicago & Eastern Illinois R. Co. v. Commission, 284 U. S. 296; New York, N. H. & H. R. Co. v. Bezue, 284 U. S. 415. The Act defines “commerce” as: “trade, commerce," }, { "docid": "22545263", "title": "", "text": ". . .” Walling v. Jacksonville Paper Co., 317 U. S. 564; Kirschbaum Co. v. Walling, 316 U. S. 517, 524. Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 558; Chicago & North Western Ry. Co. v. Bolle, 284 U. S. 74, 78; Chicago & Eastern Illinois R. Co. v. Commission, 284 U. S. 296; New York, N. H. & H. R. Co. v. Bezue, 284 U. S. 415, 419. Act of August 11, 1939, 53 Stat. 1404; Hearings, Senate Committee on. the Judiciary, Amending the Federal Employers’ Liability Act, March 28 and 29, 1939, pp. 3-9, 26-30; S. Rep. No. 661, 76th Cong., 1st Sess. Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 151; cf. Overstreet v. North Shore Corp., 318 U. S. 125. See the cases cited in note 9, supra. Philadelphia, B. & W. R. Co. v. Smith, 250 U. S. 101. Thus we said as to a rate clerk employed by a motor transportation company: “It is plain that the respondent as a transportation worker was engaged in commerce within the meaning of the Act . . .” Overnight Motor Co. v. Missel, 316 U. S. 572, 575. 52 Stat. 1060-61. Sec. 3. “(b) ‘Commerce’ means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof. \"(j) ‘Produced’ means produced, manufactured, mined, handled, or in any other manner worked on in any State; and 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.” Mr. Justice Murphy, dissenting: I think that petitioner is covered by the Fair Labor Standards Act. In using the phrase “engaged in commerce” Congress meant to extend the benefits of the Act to employees “throughout the farthest reaches of the channels of interstate commerce.” Walling v. Jacksonville Paper Co., 317 U." }, { "docid": "22142057", "title": "", "text": "upon it would be finished January 30, 1919, but it was not actually completed until February 25, 1919. The accident occurred on February 1st of that year. After the repairs were finished the engine was given a trial trip and finally put into service in interstate commerce. For its conclusion and judgment, the court reviewed a number of cases, and considered that the principle they established was simple; that its application had been rendered difficult by diversity of decisions in the federal and state courts, and that this court had fixed no rule by which the conflict could be resolved but had remitted the decision of each case to its particular facts. Such action is not unusual, and it is not very tangible to our perception how. any other can obtain when the facts in the case are in dispute. Propositions of law are easily pronounced, but when invoked, circumstances necessarily justify or repel their application in the instance and the judgment to be rendered. And there is no relief from those conditions in the present case and our inquiry necessarily must be whether, considering the facts, the cases that have been decided have tangible concurrence enough to determine the present controversy. We may say of them at once that a precise ruling, one that enables an instant and undisputed application, has not been attempted to be laid down. The test of the employment and the application of the Federal Employers’ Liability Act (in determining its application we determine between it and the California act) is, “ was the employe at the time of the injury engaged in interstate transportation or in work so closly related to it as to be practically a part of it?” Shanks v. Delaware, Lackawanna & Western R. R. Co., 239 U. S. 556. This test was followed in Chicago, Burlington & Quincy R. R. Co. v. Harrington, 241 U. S. 177, and Southern Pacific Co. v. Industrial Accident Commission, 251 U. S. 259. Shanks v. Delaware, Lackawanna & Western R. R. Co. is particularly applicable to the present case. It illustrates the test by" }, { "docid": "21522373", "title": "", "text": "the city streets. Both routes were feasible. He was under no orders until he reached his place of work. This right of way was not a railroad yard through which he must pass to reach his place of work. ■ While on the right of way and still a quarter of a mile from his place of work, he met with the accident. Was he engaged in interstate commerce at the time? In Industrial Commission v. Davis, 259 U. S. 182, 185, 42 S. Ct. 489, 490 (66 L. Ed. 888) the court in its opinion said: “The test of the employment and the application of the federal Employers’ Liability Act * * * is, ‘was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?’ ”— citing Shanks v. D., L. & W. R. Co., 239 U. S. 556, 36 S. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797. The facts in the Industrial Commission Case were that the employee was engaged in overhauling a dismantled engine which had been used and would again be used in interstate commerce. It was held the employee was not engaged in interstate commerce. In St. L. S. F. T. R. Co. v. Seale, 229 U. S. 156, 161, 33 S. Ct. 651, 653 (57 L. Ed. 1129, Ann. Cas. 1914C, 156) the test was applied to a clerk who was injured while he was on his way through a railroad yard to meet an inbound interstate freight train, and to mark the ears so that the switching crew would know what to do with them when breaking up the train. It was held he was engaged in interstate commerce. The court said: “The train from Oklahoma was not only an interstate train, but was engaged in the movement of interstate freight, and the duty which the deceased was performing was connected with that movement, not indirectly or remotely, but directly and immediately.” In North Car. R. Co. v. Zachary, 232 U." }, { "docid": "8107057", "title": "", "text": "resulting wholly or partly from the negligence of the carrier. This Court early construed the statute to require that the employee be “at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it” in order to qualify for coverage under the Act. Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 558. Later, in Raymond v. Chicago, M. & St. P. R. Co., 243 U. S. 43, 45, and New York Central R. Co. v. White, 243 U. S. 188, 192, this Court held that employees engaged in or connected with new construction for their railroad employers were not engaged in interstate commerce within the meaning of the Act and were therefore not entitled to its benefits. See also Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 152. The “moment of injury” and “new construction” doctrines were the source of much confusion to the railroads, their employees and the courts, with the result that the reports were replete with decisions drawing very fine distinctions in determining whether an employee was engaged in interstate commerce within the contemplation of the Act so as to entitle him to bring suit for damages thereunder for injuries incurred while in the carrier’s employ. The uncertainty had grown to such proportions that Congress, in 1939, added the following paragraph to § 1 of the Act: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this Act, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this Act and of an Act entitled ‘An Act relating to the liability of common carriers by railroad to their employees in certain cases’ (approved April 22, 1908), as the same has been or may hereafter be amended.” The Senate, in" }, { "docid": "22142063", "title": "", "text": "repair and construction shops, a definite withdrawal from service and-placement in new relations; the relations of a' work shop, its employments and em-. ployees having cause in the movements that constitute commerce but not being immediate to it. And it is this separation that gives character to the employment, as we have said, as being in or not in commerce. Such, we think, was the situation of the engine in the present case. It was placed in the shop'for general repairs on December 19, 1918. On February 25, 1919, after work upon it, it was given a trial and it was placed in service on March 4, 1919. The accident occurred on February 1st of that year, the engine at the time being nearly stripped and dismantled. “ It was not interrupted in an interstate haul to be repaired and go on.” Minneapolis & St. Louis R. R. Co. v. Winters, 242 U. S. 353, 356; Chicago, Kalamazoo & Saginaw Ry. Co. v. Kindlesparker, 246 U. S. 657. Further discussion is unnecessary though we are besought to declare a standard invariable by circumstances or free from confusion by them in application. If that were ever possible, it is not so now. Besides, things do not have to be in broad contrast to have different practical and legal consequences. Actions take estimation from degrees and of this, life and law are replete with examples. Judgment reversed and cause remanded for further proceedings in accordance with this opinion. New York Central & Hudson River R. R. Co. v. Carr, 238 U. S. 260; Louisville & Nashville R. R. Co. v. Parker, 242 U. S. 13; Erie R. R. Co. v. Winfield, 244 U. S. 170; New York Central R. R. Co. v. Porter, 249 U. S. 168; Philadelphia, Baltimore & Washington R. R. Co. v. Smith, 250 U. S. 101; Pedersen v. Delaware, Lackawanna & Western R. R. Co., 229 U. S. 146; Shanks v. Delaware, Lackawanna & Western R. R. Co., 239 U. S. 556; Chicago, Burlington & Quincy R. R. Co. v. Harrington, 241 U. S. 177; Minneapolis & St." }, { "docid": "22142058", "title": "", "text": "present case and our inquiry necessarily must be whether, considering the facts, the cases that have been decided have tangible concurrence enough to determine the present controversy. We may say of them at once that a precise ruling, one that enables an instant and undisputed application, has not been attempted to be laid down. The test of the employment and the application of the Federal Employers’ Liability Act (in determining its application we determine between it and the California act) is, “ was the employe at the time of the injury engaged in interstate transportation or in work so closly related to it as to be practically a part of it?” Shanks v. Delaware, Lackawanna & Western R. R. Co., 239 U. S. 556. This test was followed in Chicago, Burlington & Quincy R. R. Co. v. Harrington, 241 U. S. 177, and Southern Pacific Co. v. Industrial Accident Commission, 251 U. S. 259. Shanks v. Delaware, Lackawanna & Western R. R. Co. is particularly applicable to the present case. It illustrates the test by a contrast of examples and by it, and the cases that have followed it, the ruling of the District Court of Appeal must be judged. The ruling is, as we have said, that Burton’s work was so near to interstate commerce as to be a part of it. The court, we are prompted to say, had precedents in Northern Pacific Ry. Co. v. Maerkl, 198 Fed. 1, and Law v. Illinois Central R. R. Co., 208 Fed. 869, and it was natural to regard them as persuasive as they were decisions of Circuit Courts of Appeal. Both were ably reasoned cases. They differed, however, in their facts. In the first case, Maerkl received injuries while employed as a car carpenter in repairing a refrigerator car at the railroad shops. In the second case, Law was “a boiler maker’s helper ” and at the time of his injury was helping to repair a freight engine, used by the railroad company in interstate, commerce. It was held in both cases that the work of repair was in" }, { "docid": "22545272", "title": "", "text": "transportation, transmission, or communication among the several States or from any State to any place outside thereof.” 52 Stat. 1060, 29 U. S. C. § 203. See Chicago & North Western Ry. Co. v. Bolle, 284 U. S. 74, 78. 239 U. S. 556. 284 U. S. 74. 284 U. S. 296. 284 U. S. 415. Overnight Motor Co. v. Missel, 316 U. S. 572. Overstreet v. North Shore Corp., 318 U. S. 125. This is discussed wholly apart from the question of the applicability of § 7 because of the exemption contained in § 13 (b) (1) of the Act. See Southland Gasoline Co. v. Bayley, ante, p. 44. Cf. Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556. Cf. Chicago & North Western Ry. Co. v. Bolle, 284 U. S. 74. Cf. Chicago & Eastern Illinois R. Co. v. Commission, 284 U. S. 296. Cf. New York, N. H. & H. R. Co. v. Bezue, 284 U. S. 415. Employees cooking for workers engaged in the production of goods for commerce have been held to be similarly engaged and covered by the Act. Consolidated Timber Co. v. Womack, 132 F. 2d 101; Hanson v. Lagerstrom, 133 F. 2d 120. Speaking for the Senate conferees on the Conference Report, Senator Borah said: .. if the business is such as to occupy the channels of interstate commerce, any of the employees who are a necessary part of carrying on that business are within the terms of this bill, and, in my opinion, are under the Constitution of the United States.” 83 Cong. Rec. 9170." }, { "docid": "22577158", "title": "", "text": "from of otherwise stated. It is necessary to refer to only a.few of the decisions. In Chicago, B. & Q. R. Co. v. Harrington, supra, an employee engaged in placing coal in coal chutes, thence to be supplied to locomotives engaged in interstate traffic, was held not to have met the test. In Illinois Central R. Co. v. Cousins, 241 U. S. 641, as appears from the decision of the state court (126 Minn. 172; 148 N. W. 68), an employee was engaged in wheeling a barrow of coal to heat the shop in which other employees were at work repairing cars that had been, and were to be, used in interstate traffic. The state court held that the employee came within the act, on the ground that the work which he was doing was a part of the interstate commerce in which the carrier was engaged, and cited Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146. This court, however, repudiated that view, and reversed in an opinion per curiam on the authority of the Shanks case. In New York Central R. Co. v. White, 243 U. S. 188, 192, it was held, applying the test of the Shanks case, that employment in guarding tools, intended for use in the construction of a new depot and tracks to be used in interstate commerce, had no such direct relation to interstate transportation as was contemplated by the Employers’ Liability Act. The rule announced by the Shanks case has been categorically-restated'and applied also in the following cases among others: Southern Pacific Co. v. Industrial Accident Comm., 251 U. S. 259, 263; Industrial Commission v. Davis, 259 U. S. 182, 185; Baltimore & O. S. W. R. Co. v. Burtch, 263 U. S. 540, 543. The applicable test thus firmly established is not to be shaken by the one or two decisions of this court where, inadvertently, the word “ commerce ” has been employed instead of the word “ transportation.” Plainly, the respondent in the present case does not bring himself within the rule. At the time of" }, { "docid": "22577159", "title": "", "text": "the authority of the Shanks case. In New York Central R. Co. v. White, 243 U. S. 188, 192, it was held, applying the test of the Shanks case, that employment in guarding tools, intended for use in the construction of a new depot and tracks to be used in interstate commerce, had no such direct relation to interstate transportation as was contemplated by the Employers’ Liability Act. The rule announced by the Shanks case has been categorically-restated'and applied also in the following cases among others: Southern Pacific Co. v. Industrial Accident Comm., 251 U. S. 259, 263; Industrial Commission v. Davis, 259 U. S. 182, 185; Baltimore & O. S. W. R. Co. v. Burtch, 263 U. S. 540, 543. The applicable test thus firmly established is not to be shaken by the one or two decisions of this court where, inadvertently, the word “ commerce ” has been employed instead of the word “ transportation.” Plainly, the respondent in the present case does not bring himself within the rule. At the time of receiving his injury he was engaged in work not incidental to transportation in interstate commerce, but purely incidental to the furnishing of means for heating the station and other structures of the company. His duty ended when he had produced a supply of steam for that purpose.' He had nothing to do with it's distribution or specific use. Indeed, what he produced was not used or intended to be used, dirpctly or indirectly, in the transportation of anything. It is plain that his work was not in interstate transportation and was not so closely related to such transportation as to cause it to be practically a part of it. Certainly that work was no more closely related to transportation than was that of the employee in the Harrington case, who placed coal in the chutes for the use of locomotives engaged in interstate transportation; or that of the employee in the Cousins case, who supplied coal for heating the shop in which cars used'in interstate traffic were repaired. The work of the employees in those" }, { "docid": "378347", "title": "", "text": "construction work, which is clearly distinguishable, as was pointed out in Pedersen v. Delaware, Lackawanna & Western R. Co., 229 U.S. 146, 152, 33 S.Ct. 648, 57 L.Ed. 1125, 1128, Ann. Cas.1914C, 153.” The Supreme Court states that the test is, “Was the employee at the time of the injury engaged in interstate transportation, or in work so ‘ closely related to it as tó be practically a part of it?”, citing Shanks v. Delaware, Lackawanna & Western R. R. Co., 239 U.S. 556, 558, 36 S.Ct. 188, 60 L.Ed. 436, L.R.A.1916C, 797. In a later case, Southern Pacific Company v. Industrial Accident Commission, 251 U.S. 259, 40 S.Ct. 130, 64 L.Ed. 258, 10 A.L.R. 1181, the Supreme Court cites the Pedersen case, the Shanks case, and also New York Central R. Co. v. Porter, 249 U.S. 168, 39 S.Ct. 188, 63 L.Ed. 536, and Kinzell v. Chicago, M. & St. P. R. Co., 250 U.S. 130, 39 S.Ct. 412, 63 L.Ed. 893, and says (op., 251 U.S. 263, 40 S.Ct. 131, 64 L.Ed. 258, 10 A.L.R. 1181) : “Generally, when applicability of the federal Employers’ Liability Act [45 U.S.C.A. § 51 et seq.] is uncertain, the character of the. employment, in relation to commerce, may be adequately tested by inquiring whether, at the time of the injury, the employé was engaged in work so closely connected with interstate transportation as practically to be a part of it.” Applying the true principle of these Supreme Court decisions to the facts concerned here, it is found that the plaintiff, serving as he was as nightwatchman to protect all the property and equipment at an employer’s plant where interstate commerce goods were produced and also performing the additional duties of firing an engine so as to keep up steam and have the engine ready each morning for use in connection with interstate commerce, was in actuality engaged in the production of goods for interstate commerce within the meaning of Sections 6 and 7 of the Fair Labor Standards Act of 1938. Certainly, Congress intended no such unjust discrimination against a nightwatchman, situated" }, { "docid": "22347149", "title": "", "text": "a similar question in the coverage of the Federal Employers’ Liability Act. A practical test of what “engaged in interstate commerce” means has been evolved in cases arising under the Federal Employers’ Liability Act (45 U. S. C. §§ 51 et seq.) which, before the 1939 amendment (see 53 Stat. 1404), applied only where injury was suffered while the carrier was engaging in interstate or foreign commerce and the injured employee was employed by the carrier “in such commerce.” 35 Stat. 65. In determining the reach of that phrase, the case of Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, held that an employee who was injured while carrying bolts to be used in repairing a railroad bridge over which interstate trains passed was engaged in interstate commerce within the meaning of the Liability Act. It was pointed out that tracks and bridges were indispensable to interstate commerce and “that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it.” Id. at p. 151. See also Philadelphia, B. & W. R. Co. v. Smith, 250 U. S. 101; Southern Ry. Co. v. Puckett, 244 U. S. 571; New York Cent. R. Co. v. Porter, 249 U. S. 168; Kinzell v. Chicago, M. & St. P. Ry. Co., 250 U. S. 130; Southern Pacific Co. v. Industrial Accident Comm’n, 251 U. S. 259; Philadelphia & Reading Ry. Co. v. Di Donato, 256 U. S. 327; Rader v. Baltimore & Ohio R. Co., 108 F. 2d 980. Compare Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556; Chicago & North Western Ry. Co. v. Bolle, 284 U. S. 74; Chicago & Eastern Illinois R. Co. v. Commission, 284 U. S. 296. We think that practical test should govern here. Vehicular roads and bridges are as indispensable to the interstate movement of persons and goods as railroad tracks and bridges are to interstate transportation by rail. If they are used by" }, { "docid": "22545262", "title": "", "text": "or processor thereof.” Cooks employed to feed workers engaged in the production of goods for commerce have been held to be similarly engaged. Hanson v. Lagerstrom, 133 F. 2d 120; Consolidated Timber Co. v. Womack, 132 F. 2d 101. Walling v. Jacksonville Paper Co., supra; Higgins v. Carr Bros. Co., 317 U. S. 572. The contention that the work of the employee is covered by the exemption of § 13 (a) (2) — “any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce”— seems without significance. If the work is in interstate commerce, the exemption does not apply. Compare Consolidated Timber Co. v. Womack, 132 F. 2d 101, 106 et seq.; Hanson v. Lagerstrom, 133 F. 2d 120. Philadelphia, B. & W. R. Co. v. Smith, 250 U. S. 101. This case construed the Federal Employers’ Liability Act of April 22, 1908, 35 Stat. 65, § 1; “Every common carrier by railroad while engaging in commerce . . . shall be liable in damages . . .” Walling v. Jacksonville Paper Co., 317 U. S. 564; Kirschbaum Co. v. Walling, 316 U. S. 517, 524. Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 558; Chicago & North Western Ry. Co. v. Bolle, 284 U. S. 74, 78; Chicago & Eastern Illinois R. Co. v. Commission, 284 U. S. 296; New York, N. H. & H. R. Co. v. Bezue, 284 U. S. 415, 419. Act of August 11, 1939, 53 Stat. 1404; Hearings, Senate Committee on. the Judiciary, Amending the Federal Employers’ Liability Act, March 28 and 29, 1939, pp. 3-9, 26-30; S. Rep. No. 661, 76th Cong., 1st Sess. Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 151; cf. Overstreet v. North Shore Corp., 318 U. S. 125. See the cases cited in note 9, supra. Philadelphia, B. & W. R. Co. v. Smith, 250 U. S. 101. Thus we said as to a rate clerk employed by a motor transportation company: “It is plain that the respondent as a" }, { "docid": "22577157", "title": "", "text": "interstate transportation or in work so closely related to it as to be practically a part of it.” It will be observed that the word used in defining the test is “ transportation,” not the word “ commerce.” The two words were not regarded as interchangeable, but as conveying different meanings. Commerce covers the whole field of which transportation is only a part; and the word of narrower signification was chosen understa-ndingly and deliberately as the appropriate term. The business of a railroad is not to carry on commerce generally. It is engaged in the transportation of persons and things in commerce; and hence the test of whether an employee at the time of -his injury was engaged in interstate commerce, within the meaning of the act, naturally must be whether he was engaged in interstate transportation or in work so closely related to such transportation as to be practically a part of it. Since' the decision in the Shanks case, the test there laid down has been steadily adhered to, and never intentionally departed from of otherwise stated. It is necessary to refer to only a.few of the decisions. In Chicago, B. & Q. R. Co. v. Harrington, supra, an employee engaged in placing coal in coal chutes, thence to be supplied to locomotives engaged in interstate traffic, was held not to have met the test. In Illinois Central R. Co. v. Cousins, 241 U. S. 641, as appears from the decision of the state court (126 Minn. 172; 148 N. W. 68), an employee was engaged in wheeling a barrow of coal to heat the shop in which other employees were at work repairing cars that had been, and were to be, used in interstate traffic. The state court held that the employee came within the act, on the ground that the work which he was doing was a part of the interstate commerce in which the carrier was engaged, and cited Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146. This court, however, repudiated that view, and reversed in an opinion per curiam on" } ]

[ { "docid": "15307156", "title": "", "text": "when a loss already is in progress at the time a policy is issued, the contract of insurance does not take effect. Drewett v. Aetna Casualty & Surety Co., 539 F.2d 496 (5th Cir. 1976); accord, Presley v. National Flood Insurers Association, 399 F.Supp. 1242 (E.D.Mo.1975). In Drewett the insured’s house rested on wooden stilts above the ground. The plaintiff secured insurance at a time when the water was a few feet up the stilts but before the water had reached the living quarters of the house. A few days after the policy was issued, a levee broke, causing the water to rise further and enter the living quarters. This court held the “loss in progress” principle applicable to policies issued under the national flood insurance program and denied recovery to the plaintiff. Drewett makes it clear that Summers is not entitled to recover on his flood insurance policy issued April 25. As the district judge noted, flooding in this area was in progress as early as April 17 when the Morganza Floodway was opened as flooding rains were falling. This flooding posed an immediate threat to Summers’ house at least as early as April 20, when Summers had to travel from the road to his house by boat. The flood water that entered Summers’ house after April 25 was a continuation of the flooding process that began on April 17, so it is clear that the loss was in progress within the meaning of Drewett before the policy became effective. In fact, Summers’ case for recovery is not as strong as was Drewett’s, for although a flood was in progress at the time Drewett took out his policy, it was not until a levee broke later that the water actually reached its damaging height. Here the flood in progress on April 25 when Summers applied for coverage was not assisted in damaging Summers’ house by an aggravating event which occurred after the policy was issued. In finding coverage the district judge relied heavily on the fact that flood insurance under the emergency program became available in the area where" } ]

[ { "docid": "21546863", "title": "", "text": "Thus, the existing premium rate differential between the rates for Pre-FIRM elevated buildings without enclosures and the higher rates for PreFIRM elevated buildings with enclosures would be increased. 53 Fed.Reg. 10,548 (1988) (proposed April 1, 1988). That NFIP is a federally subsidized program does not compel the conclusion that the premiums insureds pay are not expected to defray the cost of covering the risk. In fact, NFIA authorizes estimation of premium rates according to standard insurance risk and actuarial studies. 42 U.S.C. § 4014 (1982); see Drewett v. Aetna Casualty & Sur. Co., 539 F.2d 496, 498 (5th Cir.1976) (“Because [NFIP’s] exposure to claims and its premiums are re quired to be estimated in accordance with standard insurance practices, and because private insurers carry part of the risk, it is clear that Congress did not intend to abrogate standard insurance law principles which affect such estimates and risks.”); see also 48 Fed.Reg. 39,066 (1983) (final rule publication of the exclusionary regulation in effect at time of Criger’s loss) (“The purpose of the amendment is to revise the Program regulations to reflect changes in the Flood Insurance Manual used by private sector property insurance agents and brokers in producing flood insurance business and coverage changes in the contract of flood insurance....”). With a private insurer, one generally pays higher premiums to get increased coverage. We do not accept the proposition that, merely because NFIP is federally assisted, it is divorced from the actuarial principles that govern the actions of private insurers. FEMA’s plan to charge higher premiums for the broader coverage afforded by the 1988 amendment is plainly inconsistent with an intent to allow recovery for a loss that occurred nearly two years before the 1988 amendment became effective. The District Court found that a standard “liberalization clause” in the SFIP provided evidence of FEMA’s intent that the regulation apply retroactively. Criger, 702 F.Supp. at 765. That policy provision reads as follows: While this policy is in force, should we [FEMA] have adopted any forms, endorsements, rules or regulations by which this policy could be broadened or extended for your benefit" }, { "docid": "6230956", "title": "", "text": "there would be a flood. By late afternoon, Sibert saw that water had reached within twenty-five yards of the premises and continued to approach the store. Water entered the store at approximately 9:00 p. m. on April 10, and remained there until about 2:00 o’clock of the following afternoon. NFIA refused to pay for the loss suffered by Mason Drug because the policy expressly excluded loss resulting from a flood which entered the insured’s premises on the date of the application for insurance. This action followed, and Mason Drug appeals from the District Court’s disposition of the case via summary judgment in the appellee’s favor, claiming that there are factual issues as to whether there was a loss in progress at the time the policy was applied for and whether the requirement concerning coverage of a loss in progress on the date of the application was waived. Where, as here, the language of a contract pertinent to a dispute is unambiguous, the determination of the legal operation of that language is a function for the court and not the jury. West v. Harris, 573 F.2d 873, 877 (5th Cir. 1978), cert. denied, - U.S. -, 99 S.Ct. 1424, 59 L.Ed.2d 635 (1979); Nat Harrison Associates, Inc. v. Gulf States Utilities Co., 491 F.2d 578, 584 (5th Cir. 1974); Gore v. American Motorists Ins. Co., 441 F.2d 10, 11—12 (5th Cir.), cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 187 (1971). Since this case is before us under the National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001-4127, our conclusion regarding the legal operation of the exclusionary language involved here is controlled by the application of federal law. West v. Harris, 573 F.2d at 881. Two recent decisions in this circuit have recognized that the “loss-in-progress” principle, by virtue of its recognition in standard insurance law, is applicable to policies issued under the national flood insurance program. Summers v. Harris, 573 F.2d 869 (5th Cir. 1978); Drewett v. Aetna Casualty & Surety Co., 539 F.2d 496 (5th Cir. 1976). The insurer in this case took extra precaution and" }, { "docid": "1641152", "title": "", "text": "property. In Mason Drug Company, Inc. v. Harris, 597 F.2d 886 (5th Cir.1979), the Fifth Circuit held that the “loss in progress” doctrine barred coverage where a storeowner, whose store had flooded previously, bought flood insurance during a heavy downpour and only hours before he began caulking the store and moving merchandise to more protected areas. The court relied heavily on the fact that the insurance application form in question stated that the policy would “not cover loss resulting from a flood ... occurrence already in progress on the date of this application.” Id. at 887. The flood loss occurred on the same day that the insured submitted his application for insurance. The last case relied on by the district court, Presley v. National Flood Insurers Ass’n, 399 F.Supp. 1242 (E.D.Mo.1975), observes that the “loss in progress” doctrine is a variant of the “known loss” doctrine which holds that “[a] person may not, with knowledge of a loss ..., make a contract by accepting a policy-” Id. at 1244 (emphasis added) (quoting Burch v. Commonwealth County Mut. Ins. Co., 450 S.W.2d 838, 840 (Tex.1970)). The court found that plaintiffs “were fully aware of their predicament both at the time they applied for insurance and on the effective date of the policy in question. Under these circumstances recovery must be denied.” Id. at 1245 (emphasis added). While none of the cases cited by the district court appear to have applied the doctrine without some regard for the insured’s awareness of impending loss, other cases do make it clear that the “loss in progress” doctrine does not defeat coverage unless the insured knew that a loss was in progress at the time the policy was issued. In Prudential-LMI Commercial Insurance v. Superior Court, 51 Cal.3d 674, 274 Cal.Rptr. 387, 798 P.2d 1230 (1990), the Supreme Court of California defined the “loss in progress” doctrine as “a fundamental principle of insurance law [which provides] that an insurer cannot insure against a loss that is known or apparent to the insured. ” Id. at 401 n. 7, 798 P.2d at 1244 n. 7. In" }, { "docid": "3824513", "title": "", "text": "septic tank at the relocated residence was completed and the dwelling approved for occupancy. Arguing that the amendment does not specify what event triggers coverage and that his “loss” did not occur until after February 5, 1988, Leland asserts that he should be given the benefit of coverage under the amendment by virtue of “general principles of federal law.” Federal common law controls the interpretation of insurance policies issued pursuant to the National Flood Insurance Program. (NFIP). See, e.g., Sodowski v. National Flood Ins. Program, 834 F.2d 653, 655 (7th Cir.1987). In considering coverage questions arising under the NFIP, federal courts have recognized that, because potential exposure to claims and premium rates are estimated by FEMA in accordance with standard insurance practices, “Congress did not intend to abrogate standard insurance law principles which affect such estimates and risks.” Drewett v. Aetna Cas. & Sur. Co., 539 F.2d 496, 498 (5th Cir.1976); Sodowski, 834 F.2d at 655. The standard flood insurance policy at issue in this case contains an exclusionary clause commonly referred to in the insurance industry as a “loss-in-progress” provision. That clause expressly states: We only provide coverage for direct physical loss by or from flood which means we do not cover: B. Losses of the following nature: 1. A loss which is already in progress as of 12:01 A.M. of the first day of the policy term, or as to any increase in the limits of coverage which is requested by you, a loss which is already in progress when you request the additional coverage. 44 C.F.R., Pt. 61, Art. Ill (1987). It is thus seen from the provisions of Leland’s own policy that prospective changes in policy coverage are not intended to encompass losses already in progress at the time such changes in coverage are implemented. Such a result is consistent with the decisions of federal courts which have uniformly held that the “loss-in-progress” principle of standard insurance law applies to policies issued pursuant to the Act, and thus have denied coverage for flooding commencing prior to the effective date of a policy but not resulting in" }, { "docid": "12075713", "title": "", "text": "“by settlement of the ground beneath the house, caused by a change in the consistency of the soil when the flood waters surrounded the foundation during the December 1982 flood.” The appellant concedes “that earth movement was the nearest or immediate cause” of his loss but asserts that because the flood waters caused the change in the soil’s consistency, the flooding must be a proximate cause of the structural damage. Sodowski contends that the SFI Policy is ambiguous because under one construction of the policy language, damages resulting from soil settlement, itself caused by flooding, are not covered pursuant to the earth movement exclusion, but under another, more “reasonable construction” of the policy language, these same damages would be covered as a direct loss by flood. Sodowski argues that because the insurance policy is ambiguous, we should construe the language strictly against the insurer and liberally in the insured’s interest; therefore, appellant asserts that the SFI Policy covers the structural damages to his dwelling caused by earth movement, itself caused by an inundation of flood water. Federal common law controls the interpretation of insurance policies issued pursuant to the National Flood Insurance Program (NFIP). Hanover Building Materials v. Guiffrida, 748 F.2d 1011, 1013 (5th Cir.1984); Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 135 (1st Cir.1984); West v. Harris, 573 F.2d 873, 881 (5th Cir.1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1424, 59 L.Ed.2d 635 (1979); accord Meister Bros. Inc. v. Macy, 674 F.2d 1174, 1175 fn. 2 (7th Cir.1982). Courts applying federal common law to flood insurance policies have recognized that “Congress did not intend to abrogate standard insurance law princi ples” by enacting the NFIP. Atlas Pallet, Inc., 725 F.2d at 135; Drewett v. Aetna Casualty & Surety Co., 539 F.2d 496 (5th Cir.1976). Because “neither the statutory nor decisional law of any particular state is applicable to the case at bar, we are [thus] free to apply the ‘traditional common law technique of decision by drawing upon standard insurance principals.’ ” Atlas Pallet Inc., 725 F.2d at 135 (quoting West v. Harris, 573 F.2d at 881);" }, { "docid": "3824512", "title": "", "text": "Wright cases which determined that other recent amendments to the National Flood Insurance Act should not be applied retroactively, the status of Leland’s claim in the present case was “fixed” at the time he chose to relocate his home by policy provisions then in effect. Moreover, like the amendments at issue in Criger and Wright, an intent for retroactive application of the amendment at issue is discernable from neither the language of the amendment itself nor from any other indication of congressional intent. For these reasons, the district court properly ruled that the Upton-Jones amendment to the National Flood Insurance Act, 42 U.S.C. § 4013(c), did not apply retroactively to cover the costs incurred by Leland in the relocation of his residence. IV. Leland also asserts that, even if the amendment does not apply retroactively, the amendment nonetheless affords coverage for his claim for relocation expenses. He contends that his “loss,” assertedly the relocation of his residence, was not complete until February 8, 1988, three days after the effective date of the amendment, when the septic tank at the relocated residence was completed and the dwelling approved for occupancy. Arguing that the amendment does not specify what event triggers coverage and that his “loss” did not occur until after February 5, 1988, Leland asserts that he should be given the benefit of coverage under the amendment by virtue of “general principles of federal law.” Federal common law controls the interpretation of insurance policies issued pursuant to the National Flood Insurance Program. (NFIP). See, e.g., Sodowski v. National Flood Ins. Program, 834 F.2d 653, 655 (7th Cir.1987). In considering coverage questions arising under the NFIP, federal courts have recognized that, because potential exposure to claims and premium rates are estimated by FEMA in accordance with standard insurance practices, “Congress did not intend to abrogate standard insurance law principles which affect such estimates and risks.” Drewett v. Aetna Cas. & Sur. Co., 539 F.2d 496, 498 (5th Cir.1976); Sodowski, 834 F.2d at 655. The standard flood insurance policy at issue in this case contains an exclusionary clause commonly referred to in the" }, { "docid": "1641151", "title": "", "text": "not support its conception of the “loss in progress” doctrine because each may be read to require either (1) an awareness of a loss on the part of the insured or (2) an immediate threat of loss tantamount to foreknowledge in order for the doctrine to defeat coverage. In Summers v. Harris, 573 F.2d 869 (5th Cir.1978), a flood insurance policy was purchased by the insured during a time when flood waters were rising and five days after he had “peddled a boat across the area of water which then stood in his front yard.” Although the Fifth Circuit did not discuss the foreknowledge issue per se, plaintiffs foreknowledge of the threat was clear from the facts, and the court concluded that the flooding posed an immediate threat to Summers’ house at least as early as April 20, when Summers had to travel from the road to his house by boat. Id. at 872 (emphasis added). There can be no question in this case that plaintiff knew of a serious and immediate threat to his property. In Mason Drug Company, Inc. v. Harris, 597 F.2d 886 (5th Cir.1979), the Fifth Circuit held that the “loss in progress” doctrine barred coverage where a storeowner, whose store had flooded previously, bought flood insurance during a heavy downpour and only hours before he began caulking the store and moving merchandise to more protected areas. The court relied heavily on the fact that the insurance application form in question stated that the policy would “not cover loss resulting from a flood ... occurrence already in progress on the date of this application.” Id. at 887. The flood loss occurred on the same day that the insured submitted his application for insurance. The last case relied on by the district court, Presley v. National Flood Insurers Ass’n, 399 F.Supp. 1242 (E.D.Mo.1975), observes that the “loss in progress” doctrine is a variant of the “known loss” doctrine which holds that “[a] person may not, with knowledge of a loss ..., make a contract by accepting a policy-” Id. at 1244 (emphasis added) (quoting Burch v. Commonwealth" }, { "docid": "22420053", "title": "", "text": "a federal statute dominates the subject matter in issue, see Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 63 S.Ct. 172, 87 L.Ed. 165 (1942), or when a uniform national rule is necessary to further the interests of the federal government. First National Bank, Henrietta v. Small Business Administration, 429 F.2d 280 (5th Cir. 1970), quoting Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). Since the flood insurance program is a child of Congress, conceived to achieve policies which are national in scope, and since the federal government participates extensively in the program both in a supervisory capacity and financially, it is clear that the interest in uniformity of decision present in this case mandates the application of federal law. Cf. First National Bank, Henrietta v. Small Business Administration, 429 F.2d 280 (5th Cir. 1970). Thus, a prevailing plaintiff in a suit on a flood insurance policy issued pursuant to the National Flood Insurance Act is not entitled to recover the statutory penalty and attorney’s fees allowed by state insurance law for arbitrary denial of coverage. Bains v. Hartford Fire Insurance Co., 440 F.Supp. 15 (N.D.Ga.1977); Drewett v. Aetna Casualty & Surety Co., 405 F.Supp. 877 (W.D.La.1975), aff’d on other grounds, 539 F.2d 496 (5th Cir. 1976); cf. Charleston & Western Carolina Railway Co. v. Varn ville Furniture Co., 237 U.S. 597, 35 S.Ct. 715, 59 L.Ed. 1137 (1914) (South Carolina penalty statute for failure of an interstate carrier timely to pay a claim is invalid due to Congressional regulation of the liability of an interstate carrier). Contra, Davis v. Aetna Casualty & Surety Co., 329 So.2d 868 (La.App.1976) (on rehearing). Nothing we say here is inconsistent with Drewett v. Aetna Casualty & Surety Co., 539 F.2d 496 (5th Cir. 1976). In that case, the plaintiff argued that the “loss-in-progress” principle should not be applied to a policy issued under the national flood insurance program since the National Flood Insurance Association is not an ordinary profit-seeking insurance company. In rejecting that argument the court stated: Because the Program’s exposure to" }, { "docid": "3824516", "title": "", "text": "denied for the flood damage done to the residence on the basis of the “loss-in-progress” principle, with the Fifth Circuit noting: [Although the [Flood Insurance] Program offers subsidized flood insurance, it is designed to operate much like any private insurance company.... Because the Program’s exposure to claims and its premiums are required to be estimated in accordance with standard insurance practices, and because private insurers carry part of the risk, it is clear that Congress did not intend to abrogate standard insurance law principles which affect such estimates and risks. Nothing in the statute or regulations promulgated under it requires otherwise.... [T]he district court held that the “loss-in-progress” principle applies to policies issued under the Program, rejecting the same arguments made by Drewett here. This plainly is the correct conclusion. We affirm. 539 F.2d at 497-98 (citations omitted). See generally, Annotation, National Flood Insurance Risks and Coverage, 81 A.L.R. Fed. 416, 421, 434-35 (1987). Although the “loss-in-progress” principle has been applied in cases such as Drewett, Presley, Summers and Mason to flood insurance coverage disputes which arose after the issuance of new policies of flood insurance rather than after the expansion of benefits pursuant to a statutory amendment, the rationale underlying the rule, namely, prevention of unfair allocation of loss to the insurer whether through fraud or innocent mistake, logically applies in the statutory amendment context as well. To hold otherwise, and to adopt Leland’s position that coverage exists merely because incidental repairs were made after the amendment’s effective date, would allow an insured to defer making such repairs to a flood-damaged structure in a purposeful effort to delay his “loss” until after enactment of future beneficial amendatory changes. Application of the loss-in-progress principle to the facts of this case renders it apparent that there can be no coverage for Leland’s claim on the theory that his loss did not occur until February 8, 1988, when the septic system at the relocated residence was installed and approved. Indeed, there is no dispute that the storms which damaged the Leland residence and which necessitated relocation of the structure and the consequent" }, { "docid": "22420054", "title": "", "text": "fees allowed by state insurance law for arbitrary denial of coverage. Bains v. Hartford Fire Insurance Co., 440 F.Supp. 15 (N.D.Ga.1977); Drewett v. Aetna Casualty & Surety Co., 405 F.Supp. 877 (W.D.La.1975), aff’d on other grounds, 539 F.2d 496 (5th Cir. 1976); cf. Charleston & Western Carolina Railway Co. v. Varn ville Furniture Co., 237 U.S. 597, 35 S.Ct. 715, 59 L.Ed. 1137 (1914) (South Carolina penalty statute for failure of an interstate carrier timely to pay a claim is invalid due to Congressional regulation of the liability of an interstate carrier). Contra, Davis v. Aetna Casualty & Surety Co., 329 So.2d 868 (La.App.1976) (on rehearing). Nothing we say here is inconsistent with Drewett v. Aetna Casualty & Surety Co., 539 F.2d 496 (5th Cir. 1976). In that case, the plaintiff argued that the “loss-in-progress” principle should not be applied to a policy issued under the national flood insurance program since the National Flood Insurance Association is not an ordinary profit-seeking insurance company. In rejecting that argument the court stated: Because the Program’s exposure to claims and its premiums are required to be estimated in accordance with standard insurance practices, and because private insurers carry part of the risk, it is clear that Congress did not intend to abrogate standard insurance law principles which affect such estimates and risks. 539 F.2d at 498. The court did not hold the statutory or decisional law of any particular state to be applicable. Rather, it applied the “traditional common-law technique of decision” by drawing upon standard insurance law principles. Cf. D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 471-72, 62 S.Ct. 676, 686, 86 L.Ed. 956 (1942) (concurring opinion of Mr. Justice Jackson). Nor does the insurance policy itself, which was drafted under the supervision of the Secretary of HUD, indicate that state statutes allowing penalties and attorney’s fees should be applied in suits over coverage. The policy states: Any terms of this policy which are in conflict with the statutes of the State wherein the property is located are hereby amended to conform to such statutes, except that in cases of" }, { "docid": "6436684", "title": "", "text": "closely resembles Summers v. Harris, 573 F.2d 869 (5th Cir.1978). In Summers the Fifth Circuit held that an insurer need not provide coverage under a flood insurance policy for damages from a flood which began before the policy was issued. Id. at 872. Though the flood waters had not yet reached the insured’s house when the policy was issued, and therefore the insured did not know for certain that the loss would occur, the court stressed that the flood was one continuous process that had begun prior to the policy. Id. Similarly, in the case at bar, the loss may not have been a certainty when the policy was issued. However, the process causing the loss began before the policy was issued, and the [claimant] received strong indications that it would occur. The holding in Summers was adopted by the Third Circuit in Appalachian Ins. Co. v. Liberty Mut. Ins. Co., 676 F.2d 56 (3d Cir.1982). Applying general principles of insurance law, the court denied coverage because “the risk of liability was no longer unknown.” Id. at 63. This general rule has been adopted by several courts. See Bartholomew v. Appalachian Ins. Co., 655 F.2d 27 (1st Cir.1981); Drewett v. Aetna Cas. & Sur. Co., 539 F.2d 496 (5th Cir.1976); Presley v. National Flood Insurers Assoc., 399 F.Supp. 1242 (E.D.Mo.1975). Other courts have adopted a similar rule that where there is evidence beforehand indicating a substantial probability that loss will occur, if the loss does occur, it is not an occurrence. See City of Carter Lake v. Aetna Cas. & Sur., 604 F.2d 1052, 1059 (8th Cir.1979); Honeycomb Systems Inc. v. Admiral Ins. Co., 567 F.Supp. 1400 (D.Me.1983). See New Castle, 685 F.Supp. at 129-30. For the reasons enunciated in New Castle, this court concludes that the PRP letters in May 1982 notified Time Oil that there was a “substantial probability” that it would be required to pay response costs relating to the contamination. See id. Furthermore, insurance policies traditionally have been considered contracts requiring the utmost good faith. See, e.g., Stipich v. Metropolitan Life Ins. Co., 277 U.S. 311," }, { "docid": "6230957", "title": "", "text": "court and not the jury. West v. Harris, 573 F.2d 873, 877 (5th Cir. 1978), cert. denied, - U.S. -, 99 S.Ct. 1424, 59 L.Ed.2d 635 (1979); Nat Harrison Associates, Inc. v. Gulf States Utilities Co., 491 F.2d 578, 584 (5th Cir. 1974); Gore v. American Motorists Ins. Co., 441 F.2d 10, 11—12 (5th Cir.), cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 187 (1971). Since this case is before us under the National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001-4127, our conclusion regarding the legal operation of the exclusionary language involved here is controlled by the application of federal law. West v. Harris, 573 F.2d at 881. Two recent decisions in this circuit have recognized that the “loss-in-progress” principle, by virtue of its recognition in standard insurance law, is applicable to policies issued under the national flood insurance program. Summers v. Harris, 573 F.2d 869 (5th Cir. 1978); Drewett v. Aetna Casualty & Surety Co., 539 F.2d 496 (5th Cir. 1976). The insurer in this case took extra precaution and included the “loss-in-progress” principie as an exclusionary clause in the application for insurance. The contract for insurance thus clearly excluded from coverage loss resulting from a flood already in progress on the date of the application. The appellant’s claim that the loss must be in progress at the time the policy was applied for in order for the exclusionary language to apply is contrary to the plain terms of the contract and without merit. That the flood was in progress on April 10, 1975, the date of application, is undisputed. Indeed, the store was flooded on that date. There is also no dispute that the policy was in effect on April 10, 1975. That being the case, all of the provisions of the policy were effective on that date, including the portion which specifically excluded coverage of loss in progress on April 10, the date of application. The loss incurred as a result of the April 10 flood is thus outside the bounds of coverage afforded by the policy. Mason Drug contends that the policy’s" }, { "docid": "6230965", "title": "", "text": "to the agreement of the parties, or failing evidence, resolve the ambiguity against the insurer responsible for the language. . One could argue that there is a fact question as to whether the flood was “in progress” when the river first rose above normal levels or at progressive points thereafter. It is undisputed there was no flood in progress the day preceding the application. Accordingly, there was also then no “loss in progress.” Drewett v. Aetna Casualty & Surety Co., 539 F.2d 496 (5th Cir. 1976); Summers v. Harris, 573 F.2d 869 (5th Cir. 1978). . It is established in this circuit that the “loss-in-progress” doctrine of insurance law is applicable to policies issued under the national flood insurance program. Arguably the insurer here ought to enjoy the benefit of the doctrine despite the fact that express provision is made in the insurance contract for losses in progress. Even under that view, however, there appears to be a fact question as to whether the flood was in progress at the time the insurer accepted the policy on April 10, 1975. The existence of such a fact question would, of course, preclude entry of summary judgment in favor of the insurer." }, { "docid": "15307157", "title": "", "text": "as flooding rains were falling. This flooding posed an immediate threat to Summers’ house at least as early as April 20, when Summers had to travel from the road to his house by boat. The flood water that entered Summers’ house after April 25 was a continuation of the flooding process that began on April 17, so it is clear that the loss was in progress within the meaning of Drewett before the policy became effective. In fact, Summers’ case for recovery is not as strong as was Drewett’s, for although a flood was in progress at the time Drewett took out his policy, it was not until a levee broke later that the water actually reached its damaging height. Here the flood in progress on April 25 when Summers applied for coverage was not assisted in damaging Summers’ house by an aggravating event which occurred after the policy was issued. In finding coverage the district judge relied heavily on the fact that flood insurance under the emergency program became available in the area where Summers lived on April 23. Although normally there is a 15-day waiting period between the date of application and the date a policy is issued, in this case the waiting period was waived. Because the National Flood Insurers Association made insurance available on April 23 with an immediate effective date, the trial judge reasoned that they must have intended to insure against this particular flood hazard knowing it was already in progress. However, nothing stated in the purpose for or operation of the emergency program demonstrates or suggests that the insurer must reimburse persons for losses which have already begun at the time they apply for insurance. Congress in the National Flood Insurance Act of 1968 instructed the Secretary of Housing and Urban Development (HUD) to make flood insurance available only in areas evidencing a positive interest in securing insurance and assuring adoption of land use and control measures for flood plain management consistent with federal standards. 42 U.S.C.A. § 4012(c). The Secretary of HUD has promulgated a laundry-list of actions that must be taken" }, { "docid": "3824515", "title": "", "text": "loss until after the effective date. See, e.g., Presley v. National Flood Insurers Assoc., 399 F.Supp. 1242, 1245 (E.D.Mo.1975); Mason Drug Co. v. Harris, 597 F.2d 886, 887-88 (5th Cir.1979); Summers v. Harris, 573 F.2d 869 (5th Cir.1978); Drewett, 539 F.2d at 498. Even in the absence of a “loss-in-progress” policy exclusion, federal courts have denied coverage for losses due to flooding which occurred prior to the effective date of a policy issued pursuant to the National Flood Insurance Program. See, e.g., Drewett, 539 F.2d 496; Summers, 573 F.2d 869. In Drewett v. Aetna Cas. & Sur., an insured applied for and was issued a flood policy pursuant to the National Flood Insurance Program to cover his “camp house.” Prior to and on the date the policy was issued, flood waters had risen three to four feet up the stilts which supported the structure. 539 F.2d at 497. Three days after issuance of the policy, a levee which surrounded the property broke, allowing flood waters to enter the living quarters of the structure. Coverage was denied for the flood damage done to the residence on the basis of the “loss-in-progress” principle, with the Fifth Circuit noting: [Although the [Flood Insurance] Program offers subsidized flood insurance, it is designed to operate much like any private insurance company.... Because the Program’s exposure to claims and its premiums are required to be estimated in accordance with standard insurance practices, and because private insurers carry part of the risk, it is clear that Congress did not intend to abrogate standard insurance law principles which affect such estimates and risks. Nothing in the statute or regulations promulgated under it requires otherwise.... [T]he district court held that the “loss-in-progress” principle applies to policies issued under the Program, rejecting the same arguments made by Drewett here. This plainly is the correct conclusion. We affirm. 539 F.2d at 497-98 (citations omitted). See generally, Annotation, National Flood Insurance Risks and Coverage, 81 A.L.R. Fed. 416, 421, 434-35 (1987). Although the “loss-in-progress” principle has been applied in cases such as Drewett, Presley, Summers and Mason to flood insurance coverage disputes" }, { "docid": "19271283", "title": "", "text": "Appalachian need not indemnify Liberty because the occurrence preceded the effective date of the insurance policy. A contrary result in this case would contravene the rule that an insured cannot insure against something. that has already begun. (Case citations omitted). The rule is based on the realization that the purchase of insurance is to protect insureds against unknown risk. When the Appalachian policy became effective, however, the risk of liability was no longer unknown because the injuries resulted immediately upon Liberty’s promulgation of its discriminatory policies. Also, the complaint to the EEOC preceded the effective date of the Appalachian policy. 676 F.2d at 63. In support of the general proposition that no coverage is afforded for claims asserted prior to the purchase of insurance policies, Centaur cites Presley v. National Flood Insurers Ass’n, 399 F.Supp 1242 (E.D.Mo.1975); City of Carter Lake v. Aetna, 604 F.2d 1052 (8th Cir. 1979); Summers v. Harris, 573 F.2d 869 (5th Cir.1978); Drewett v. Aetna Cas. & Sur. Co., 539 F.2d 496 (5th Cir.1976); and United States Fid. & Guar. v. Bonitz Insulation Co., 424 So.2d 569 (Ala.1982). While the cases cited by Centaur seemingly foreclose coverage under any of its policies because each of the policies was obviously purchased after the institution of the original suit by the United States against CCC, the result urged by Centaur would require a holding as a matter of law that no occurrence took place after the filing of the Government’s original suit. Pointed out in Bartholomew v. Appalachian Ins. Co.: Strictly, the act for which a manufacturer is liable is the initial supplying of defective equipment. However, the cause of action is held to arise when the defect takes effect or is discovered ... Thus, when a plaintiff, sometime after having purchased a ladder fell therefrom and was injured, thereby discovering an alleged defect, it was the manufacturer’s insurer at that date, if any, that was responsible, and not the insurer at the date of sale. [Citations omitted.] This is not to say, however, that if the plaintiff had continued to use the ladder and was injured" }, { "docid": "6230964", "title": "", "text": "this case took extra precaution and included the “loss-in-progress” principle as an exclusionary clause in the application for insurance The insurer was, it seems, attempting to do more. It was apparently attempting to except the risk of a flood in progress, not merely at the time the policy was accepted, but for the entire day. If an insurer wishes to enjoy the benefits of insurance sales prompted by rising water and rising fear but does not wish to bear the risk of flood on the entire day of application, it can plainly so provide by deleting the word “already” from its contract of insurance, or by otherwise unambiguously excluding coverage for the entire day upon which application for insurance is made. The majority concludes that the policy here did unambiguously exclude coverage for floods occurring at any time on the day of the application. I find the exclusionary provision of the policy ambiguous, and I would reverse the summary judgment entered in the appellee’s favor and remand for a trial of any fact question as to the agreement of the parties, or failing evidence, resolve the ambiguity against the insurer responsible for the language. . One could argue that there is a fact question as to whether the flood was “in progress” when the river first rose above normal levels or at progressive points thereafter. It is undisputed there was no flood in progress the day preceding the application. Accordingly, there was also then no “loss in progress.” Drewett v. Aetna Casualty & Surety Co., 539 F.2d 496 (5th Cir. 1976); Summers v. Harris, 573 F.2d 869 (5th Cir. 1978). . It is established in this circuit that the “loss-in-progress” doctrine of insurance law is applicable to policies issued under the national flood insurance program. Arguably the insurer here ought to enjoy the benefit of the doctrine despite the fact that express provision is made in the insurance contract for losses in progress. Even under that view, however, there appears to be a fact question as to whether the flood was in progress at the time the insurer accepted the" }, { "docid": "2851125", "title": "", "text": "intend to abrogate standard insurance law principles which affect such estimates and risks.” Drewett v. Aetna Casualty & Sur. Co., 539 F.2d 496, 498 (5th Cir.1976); accord Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 135 (1st Cir.1984). Although the Program “offers subsidized flood insurance, it is designed to operate much like any private insurance company.” Drewett, 539 F.2d at 498. Furthermore, it is well settled that an insurance policy is a contract. See e.g., Clyce v. St. Paul Fire & Marine Ins. Co., 850 F.2d 1398, 1401 (11th Cir.1987). FEMA’s administration of the insurance program does nothing to alter the status of the policies as insurance contracts. As contracts, the standard policies issued under the Program are governed by federal law, see West v. Harris, 573 F.2d 873, 880-81 (5th Cir.1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1424, 59 L.Ed.2d 635 (1979), applying “standard insurance law principles.” Id. at 481; Drewett, 539 F.2d at 498. In construing the policies, it “is a basic tenet of insurance law that each time an insurance contract is renewed, a separate and distinct policy comes into existence.” Hercules Bumpers, Inc. v. First State Ins. Co., 863 F.2d 839, 842 (11th Cir.1989). In this case, the policies applicable to Wright’s losses terminated on September 25, 1985, and September 25, 1986, respectively. These terms, i.e. the policy terms in effect at the time of the flood loss, dictated the contractual conditions of plaintiff’s relationship with the government. The terms provided that the ground level contents of elevated buildings such as Wright’s residence were explicitly excluded from coverage, and we see no contractual grounds for incorporating into the terms a change in regulations that took effect two years after Wright’s applicable policies had expired. Moreover, we see no reason to alter this conclusion by treating the standard policies issued through the Program differently from other insurance contracts, simply because their terms are set forth in the form of administrative regulations. As the Eighth Circuit recently pointed out with regard to the elevated structure exclusion: The regulation at issue is, in effect, a term of an" }, { "docid": "19271282", "title": "", "text": "In Appalachian Ins. Co. v. Liberty Mutual Ins. Co., 676 F.2d 56 (3rd Cir.1982), the Court rejected coverage for an incident occurring prior to the acquisition of the policy. Liberty Mutual had adopted employment practice policies for its claims department in 1965. Several employees filed discrimination charges against Liberty Mutual with the EEOC in May of 1971. The employment practices were claimed to be discriminatory and continuous until after the Appalachian policy went into effect. Liberty Mutual settled the case and sought reimbursement from Appalachian under a policy that took effect on August 1, 1971. Some of the employees who participated in the settlement had not begun their employment until after August 1, 1971, and some of the injurious effects of the employment practices were found to have extended into the period of Appalachian coverage. The Court found that this “continuing damage” did not trigger the Appalachian policy: Since the injuries to Liberty’s employees occurred immediately upon the promulgation of Liberty’s discriminatory policies, the occurrence took place for purposes of coverage before August 1, 1971. Appalachian need not indemnify Liberty because the occurrence preceded the effective date of the insurance policy. A contrary result in this case would contravene the rule that an insured cannot insure against something. that has already begun. (Case citations omitted). The rule is based on the realization that the purchase of insurance is to protect insureds against unknown risk. When the Appalachian policy became effective, however, the risk of liability was no longer unknown because the injuries resulted immediately upon Liberty’s promulgation of its discriminatory policies. Also, the complaint to the EEOC preceded the effective date of the Appalachian policy. 676 F.2d at 63. In support of the general proposition that no coverage is afforded for claims asserted prior to the purchase of insurance policies, Centaur cites Presley v. National Flood Insurers Ass’n, 399 F.Supp 1242 (E.D.Mo.1975); City of Carter Lake v. Aetna, 604 F.2d 1052 (8th Cir. 1979); Summers v. Harris, 573 F.2d 869 (5th Cir.1978); Drewett v. Aetna Cas. & Sur. Co., 539 F.2d 496 (5th Cir.1976); and United States Fid. & Guar." }, { "docid": "3824514", "title": "", "text": "insurance industry as a “loss-in-progress” provision. That clause expressly states: We only provide coverage for direct physical loss by or from flood which means we do not cover: B. Losses of the following nature: 1. A loss which is already in progress as of 12:01 A.M. of the first day of the policy term, or as to any increase in the limits of coverage which is requested by you, a loss which is already in progress when you request the additional coverage. 44 C.F.R., Pt. 61, Art. Ill (1987). It is thus seen from the provisions of Leland’s own policy that prospective changes in policy coverage are not intended to encompass losses already in progress at the time such changes in coverage are implemented. Such a result is consistent with the decisions of federal courts which have uniformly held that the “loss-in-progress” principle of standard insurance law applies to policies issued pursuant to the Act, and thus have denied coverage for flooding commencing prior to the effective date of a policy but not resulting in loss until after the effective date. See, e.g., Presley v. National Flood Insurers Assoc., 399 F.Supp. 1242, 1245 (E.D.Mo.1975); Mason Drug Co. v. Harris, 597 F.2d 886, 887-88 (5th Cir.1979); Summers v. Harris, 573 F.2d 869 (5th Cir.1978); Drewett, 539 F.2d at 498. Even in the absence of a “loss-in-progress” policy exclusion, federal courts have denied coverage for losses due to flooding which occurred prior to the effective date of a policy issued pursuant to the National Flood Insurance Program. See, e.g., Drewett, 539 F.2d 496; Summers, 573 F.2d 869. In Drewett v. Aetna Cas. & Sur., an insured applied for and was issued a flood policy pursuant to the National Flood Insurance Program to cover his “camp house.” Prior to and on the date the policy was issued, flood waters had risen three to four feet up the stilts which supported the structure. 539 F.2d at 497. Three days after issuance of the policy, a levee which surrounded the property broke, allowing flood waters to enter the living quarters of the structure. Coverage was" } ]

[ { "docid": "14732741", "title": "", "text": "have a history of criminal involvement over a long period of time other than this offense, this crime involved both planned criminal acts and a substantial time period of eight months. The court concluded that she had engaged in a pattern of criminal conduct. (Tr. Sentencing of Peggy Hearrin, E.D.Mo., Dec. 9, 1988, at 19-20). Based upon these findings, the court sentenced William Hearrin to twenty-one months imprisonment and Peggy Hearrin to four months imprisonment. I. On appeal, Peggy and William Hearrin argue that they had not engaged in “more than minimal planning” and, therefore, section 2F1.1, dealing with offenses involving fraud or deceit, does not mandate an increase of two levels over the base offense level of six. The Guidelines define “more than minimal planning,” in part, as follows: “More than minimal planning” means more planning than is typical for commission of the offense in a simple form. “More than minimal planning” also exists if significant affirmative steps were taken to conceal the offense. “More than minimal planning” is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses. In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. U.S.S.G. § 1B1.1, comment, (n. 1(f)) (emphasis added). In light of this definition and the record before the district court, the court did not err in its application of the “more than minimal planning” guideline. The facts in the stipulations fully satisfy the Guidelines’ definition set forth above. Over an eight-month period, the Hearrins created a fictitious business name, opened both a post office box and a bank account in that name, and submitted fraudulent payment requests or completed fraudulent drafts resulting in seventy payments totalling approximately $129,404. While the Guidelines’ illustration" } ]

[ { "docid": "568152", "title": "", "text": "907 F.2d 1028, 1031 (10th Cir.1990) (reviewing “minor participant” under clearly erroneous standard). The Sentencing Guidelines envision an increase in base offense levels for crimes involving fraud or deceit where “more than minimal planning” is present. U.S.S.G. § 2F1.1(b)(2)(A). The term “more than minimal planning” is defined, in relevant part to include the following: “ ‘More than minimal planning’ is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune.” U.S.S.G. § 1B1.1, comment. (n.l(f)) (referenced by § 2F1.1, comment, (n.2)). It is undisputed that Sanchez personally used the stolen card on fifteen separate occasions at as many locations over a period of approximately one month. Each purchase involved several calculated falsehoods including a forged signature. Given the record before us, we conclude that the district court’s determination that Sanchez’ offense involved “more than minimal planning” is not clearly erroneous. C.f., United States v. Hearrin, 892 F.2d 756 (8th Cir.1990) (upholding “more than minimal planning” where stolen check offense was repeated seven times over three week period). Sanchez argues that he was entitled to a reduction based on his role in the offense, and to support his argument cites the fact that his wife received such a reduc tion in her sentence. Sanchez was not convicted for his role in any conspiracy however. Rather, he pled guilty to one single count of fraud involving his personal use of the stolen credit card. For this reason alone his argument fails; he is solely responsible for the crime. Moreover, Sanchez cannot insist on a relative comparison between his own crime and his wife’s conduct; the district court need not have determined that Sanchez “was or was not the least culpable participant in determining whether [his] role was ‘minor’ ” United States v. Rexford, 903 F.2d 1280, 1282 (9th Cir.1990). In any event, Sanchez clearly had knowledge of his brother’s and his wife’s activities concerning the stolen credit cards. He was responsible for instigating his wife’s use of the cards. He was solely responsible for his own personal forgeries and" }, { "docid": "23491375", "title": "", "text": "1, 1989). Second, the court found that Chaves obstructed justice by attempting to induce Schlinder to hide relevant information from the FBI and thus increased his base offense level by two more levels, pursuant to U.S.S.G. § 3C1.1 (Nov. 1, 1989). A finding of “more than minimal planning” is reviewed for clear error. United States v. Scroggins, 880 F.2d 1204, 1215 (11th Cir.1989), cert. denied, 494 U.S. 1083, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990). Section 2B1.2(b)(3)(B) provides that the offense level for the crime of receipt of stolen property from interstate commerce increases by two levels if the offense involved “more than minimal planning.” The Guidelines define “more than minimal planning” as “more planning than is typical for commission of the offense in a simple form,” and stress that “ ‘more than minimal planning’ is deemed present in any case involving repeated acts over a period of time,” except where each instance was clearly “opportune.” U.S.S.G. § 1B1.1, comment, (n. 1(f)) (Nov. 1, 1989). “More than minimal planning” also exists “if significant affirmative steps were taken to conceal the offense.” Id. The facts of this case confirm the district court’s determination that Chaves’ role was more than minor. His “relevant conduct” includes reasonably foreseeable actions in furtherance of the conspiracy by his coeonspirators. U.S.S.G. § lB1.3(a) (Nov. 1, 1989). See also id., comment, (n. 1) (defining conduct for which defendant “would otherwise be accountable” to include “conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant”); United States v. Fuentes, 991 F.2d 700, 701 (11th Cir.1993) (per curiam) (conspiracy defendant can be sentenced for reasonably foreseeable eoconspirator acts committed in furtherance of conspiracy). Here, the conspirators. engaged in repeated acts over a period of time as they frequently searched for tractor trailers loaded with seafood, stole several tractor trailers, hid them in a warehouse, and used Chaves’ truck to redistribute the stolen seafood to Chaves, who then fenced the stolen merchandise. See United States v. Mullins, 996 F.2d 1170, 1171 (11th Cir.1993) (per curiam) (defendant’s three separate purchases of" }, { "docid": "1278426", "title": "", "text": "the alleged wrongs of its members acting on its behalf, the LCDSA itself could be a proper defendant — and conceivably the sole defendant. In our opinion, its capacity to be sued establishes the LCDSA’s legal identity to an extent sufficient for us to conclude that, by virtue of Marcum’s skimming ten percent of the gross proceeds from the bingo games, the LCDSA was defrauded by a like amount. In short, although the government may have more easily proved a different charge against Marcum, it adequately proved this one. rv. Marcum asserts that the district court misapplied the Sentencing Guidelines, improperly finding the following specific offense characteristics that increased his offense level fourteen points: Loss in excess of $20,000 [§ 2F1.1(b)(1)(E) ] + 4 More than minimal planning involved in the offense [§ 2F1.1(b)(2) ] + 2 Misrepresentation of acting on behalf of a charitable organization [§ 2F1.1(b)(3) ] + 2 Leadership or organizational role in a criminal activity involving five or more participants [§ 3B1.1(a) ] + 4 Abuse of a position of trust [§ 3B1.3] + 2 Because Marcum’s arguments involve mixed questions of law and fact, we give due deference to the district court’s application of the guidelines to the facts. United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir.1989). Examining each contention in turn, we conclude that the district court properly applied the guidelines. Marcum admitted to the FBI that he had skimmed $25,800 to $29,000 from the bingo games. He does not now deny this figure, but instead argues that no one “lost” money as a result. This argument is identical to his contention that no one was “defrauded” as a result of his actions. Having already rejected this argument in Section III, supra, we need not address it further. The comments to the guidelines deem “more than minimal planning” to be present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. U.S.S.G. § 1B1.1, comment, (n.1(f)). Marcum’s skimming was not an isolated incident of which he took an opportunistic advantage; he" }, { "docid": "2508133", "title": "", "text": "F.3d at 7. Royal claims that the only evidence offered against him at trial was that “he worked in the Niagara Falls office of ATTS and met some of the government’s witnesses when they visited the office.” Royal’s attempt to put his own spin on the facts does not render the district court’s determination clearly erroneous. Each of Royal’s acts was an integral part of the scheme to defraud and the sentencing court was not clearly erroneous in denying Royal’s requested downward departure under the guidelines. B. More than Minimal Planning Royal complains that the district court improperly adjusted upward two levels because Royal’s acts and role in the offense required more than minimal planning. See U.S.S.G. § 2Fl.l(b)(2)(A). Royal maintains that the trial testimony shows that he was “merely an office attendant” at EZ-EM and that he was not present when the “principal planners” met to discuss the scheme. The Commentary to section 2F1.1 refers the reader to the definition of “more than minimal planning” set forth in the Commentary to section 1B1.1. There, “more than minimal planning” is defined as “more planning than typical for commission of the offense in a simple form.” U.S.S.G. § 1B1.1, application note 1(f). “‘More than minimal planning’ is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune.” Id. “[W]e are not inclined to reverse a finding of more than minimal planning unless the evidence compels the conclusion that the defendant’s actions were purely opportune or ‘spur of the moment.’” United States v. Brandon, 17 F.3d 409, 459 (1st Cir.), cert. denied sub nom., — U.S. -, 115 S.Ct. 80, 130 L.Ed.2d 34 (1994). We find that here, the complex scheme to defraud and Royal’s conduct in furtherance of it were not purely opportune and, therefore, meet the definition of “more than minimal planning.” The trial testimony demonstrates that Royal engaged in several repeated fraudulent acts in furtherance of this conspiracy. The sentencing court was entitled to find, under the definition provided by the guidelines, that Royal’s repeated acts" }, { "docid": "18849362", "title": "", "text": "of intentful creativity, planning, and complicated execution exhibited by Carl. The departure should be reviewed in the context of the record and testimony presented at the sentencing hearing, since there was no trial. As to the number of fraudulent acts, Carl’s attorney readily admitted to the sentencing judge that all of Carl’s fraudulent activity was not covered. The attorney stated that the fictitious credit cards were used “many more times ” than the offense conduct of the PSR or indictment covered. R4-117 (emphasis added). He made the same admission before this en banc court at oral argument. Additionally, making false applications for credit cards, mailing the applications, and using the fraudulently obtained cards in creatively deceitful ways were separate acts of fraud. Because all of Carl’s fraudulent conduct was not encompassed, the enhancement from the dollar loss table of section 2Fl.1(b)(1) is not an accurate representation of the monetary loss. We further have recognized that, under section 2F1.1(b)(1), intended or attempted loss may be cumulated with actual loss. United States v. Rayborn, 957 F.2d 841, 844 (11th Cir.1992) (per curiam); see U.S.S.G. § 2F1.1, comment, (nn. 6 & 7). Intended loss was not included in the computed dollar amount of $500,001 used to calculate Carl’s enhancement under section 2F1.1(b)(1). Contrary to the majority’s assertion that Carl “defrauded eight financial institutions of almost $500,000,” Majority Op. at 1109, the dollar loss table does not provide “an objective and quantifiable measure of loss” as to the monetary loss or direct victims resulting from Carl’s fraudulent conduct, id. The Guidelines define section 2F1.1(b)(2)(A), “more than minimal planning,” to mean “more planning than is typical for commission of the offense in a simple form ” and find this characteristic present “in any ease involving repeated acts over a period of time, unless it is clear that each instance was purely opportune.” U.S.S.G. § 1B1.1, comment, (n. 1(f)) (emphasis added). This enhancement is pro forma or commonplace in fraud cases; “[throughout the guidelines, if more than minimal planning is considered a specific offense characteristic, a two-level upward adjustment is recommended.” United States v. Kramer, 943" }, { "docid": "3984805", "title": "", "text": "matter of law. Under the guidelines, the mere fact that the defendant was less culpable than his co-defendant does not entitle the defendant to “minor participant” status as a matter of law. In United States v. Rex-ford, 903 F.2d 1280 (9th Cir.1990), the defendant was concededly less culpable than his codefendant, but was still held to have been more than a “minor participant” because he was “deeply involved” in the offense. Id. at 1282-83. In our case, the stipulated facts indicate Jeffrey West was deeply involved in the criminal acts. The district court did not err in denying Jeffrey West a “mitigating role” reduction simply because his father was more culpable. West argues that the court erred in adding two offense levels because the fraud involved more than minimal planning. U.S.S.G. § 2F1.1(b)(2). West argues that he did not participate in ordering the unauthorized ingredients, formulating the products, or contracting with the State of Missouri. West’s arguments are directed to the nature of his role in the offense, rather than the nature of the offense itself, which is the focus of the “more than minimal planning” language. U.S.S.G. § 2F1.1(b)(2). Almost any crime that consists of a pattern of activity over a long period of time would qualify as an offense involving more than minimal planning: “ ‘More than minimal planning’ is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune.” U.S.S.G. § 1B1.1, comment, (n.l(f)). West stipulated that he knowingly participated in a fraud “[bjeginning in late 1987 and continuing through October 26, 1989.” Since it is not disputed that the offense itself required more than minimal planning and that Jeffrey West was involved for almost two years, the district court’s application of section 2F1.1(b)(2) was not clearly erroneous. West also argues that the district court erred in determining that the loss to the victim was $285,188.16, thereby requiring an increase of seven ‘offense levels under U.S.S.G. § 2F1.1(b)(1). The State of Missouri contracted for approximately 334,-000 pounds of meat, at a price of about" }, { "docid": "3984806", "title": "", "text": "itself, which is the focus of the “more than minimal planning” language. U.S.S.G. § 2F1.1(b)(2). Almost any crime that consists of a pattern of activity over a long period of time would qualify as an offense involving more than minimal planning: “ ‘More than minimal planning’ is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune.” U.S.S.G. § 1B1.1, comment, (n.l(f)). West stipulated that he knowingly participated in a fraud “[bjeginning in late 1987 and continuing through October 26, 1989.” Since it is not disputed that the offense itself required more than minimal planning and that Jeffrey West was involved for almost two years, the district court’s application of section 2F1.1(b)(2) was not clearly erroneous. West also argues that the district court erred in determining that the loss to the victim was $285,188.16, thereby requiring an increase of seven ‘offense levels under U.S.S.G. § 2F1.1(b)(1). The State of Missouri contracted for approximately 334,-000 pounds of meat, at a price of about $285,000. West argues that some 62,000 pounds of meat were recalled by West Meat Co. and credit issued to the State, and the State withheld payment on an additional 58,000 pounds. In addition, the Wests paid $20,000 in settlement of a civil suit against them by the State of Missouri. Moreover, West argues that since the products sold included mostly good meat and only a small percentage of adulterants, the value attributable to the good meat should not be considered part of the State’s loss. The amount of the loss is a factual question to be reviewed under the clearly erroneous standard. See Morphew v. United States, 909 F.2d 1143, 1145 & n. 5 (8th Cir.1990). The record in this case consisted of the presentence report and the objections West made to the report by motion and at a hearing. The district court made a factual determination based on the materials presented to it. The guidelines establish that loss includes “probable or intended loss,” U.S.S.G. § 2F1.1, comment, (n. 7). Therefore, West’s arguments about recalled" }, { "docid": "4408100", "title": "", "text": "(5th Cir.1993), the court held any sophisticated means used in the case were to conceal embezzlement, not to hide tax evasion. Ms. Stokes simply did not tell her accountant about the income derived from her embezzlement. See generally United States v. Charroux, 3 F.3d 827, 836-37 (5th Cir.1993). By comparison with the decided cases, Mr. Rice’s tax evasion scheme was not sophisticated. He merely claimed to have paid withholding taxes he did not pay. Although the trial court’s finding is entitled to deference, we are hard pressed to agree with its conclusion. In substance, Mr. Rice’s fraud is the functional equivalent of claiming more in itemized deductions than actually paid. If that scheme is sophisticated within the meaning of the guidelines, then every fraudulent tax return will fall within that enhancement’s rubric. Section 2Fl.l(b)(2)(A) provides for a two-level enhancement for fraud and deceit crimes involving more than minimal planning. The commentary to § 1B1.1 defines “more than minimal planning” as follows: “More than minimal planning” means more planning than is typical for commission of the offense in a simple form. “More than minimal planning” also exists if significant affirmative steps were taken to conceal the offense. “More than minimal planning” is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses. In United States v. Williams, 966 F.2d 555 (10th Cir.1992), we held a computer embezzlement scheme constituted more than minimal planning. In United States v. Sanchez, 914 F.2d 206 (10th Cir.1990), a defendant, who on fifteen occasions used a stolen credit card he received from his brother, engaged in more than minimal planning. Mr. Rice’s fraud in this case is similar and falls within the sentencing guidelines commentary. For three consecutive years, Mr. Rice employed a fairly complicated scheme to receive tax refunds. His actions are more calculated and took more planning than simply failing to report income. When coupled with the fact he conducted his scheme in three consecutive years, there is enough in the" }, { "docid": "568151", "title": "", "text": "brought his wife into the criminal activity, resulting in his wife’s use of three stolen cards on numerous occasions from January through August 1988. Sanchez personally used “his” stolen card at fifteen different stores. Based on these facts, the district court concluded that Sanchez’ activities involved more than “minimal planning” because the offending use of the credit card took place repeatedly at more than one location. Likewise, the court found that Sanchez’ role was more than a minor one because, among other things, Sanchez had “recruited” his wife into similar criminal activity. Discussion We review the district court’s findings both as to the amount of planning involved under § 2Fl.l(b)(2)(A), and as to Sanchez’ role in the offense as essentially factual determinations which we will not disturb on appeal absent a showing that they are clearly erroneous. See, e.g., United States v. Cianscewski, 894 F.2d 74, 82 (3d Cir.1990) (reviewing a finding of “more than minimal planning” under clearly erroneous standard); United States v. Scroggins, 880 F.2d 1204 (11th Cir.1989) (same); United States v. Lord, 907 F.2d 1028, 1031 (10th Cir.1990) (reviewing “minor participant” under clearly erroneous standard). The Sentencing Guidelines envision an increase in base offense levels for crimes involving fraud or deceit where “more than minimal planning” is present. U.S.S.G. § 2F1.1(b)(2)(A). The term “more than minimal planning” is defined, in relevant part to include the following: “ ‘More than minimal planning’ is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune.” U.S.S.G. § 1B1.1, comment. (n.l(f)) (referenced by § 2F1.1, comment, (n.2)). It is undisputed that Sanchez personally used the stolen card on fifteen separate occasions at as many locations over a period of approximately one month. Each purchase involved several calculated falsehoods including a forged signature. Given the record before us, we conclude that the district court’s determination that Sanchez’ offense involved “more than minimal planning” is not clearly erroneous. C.f., United States v. Hearrin, 892 F.2d 756 (8th Cir.1990) (upholding “more than minimal planning” where stolen check offense was repeated seven" }, { "docid": "3116708", "title": "", "text": "purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. U.S.S.G. § 1B1.1, comment, (n. 1(f)). The trial court’s finding of the amount of planning involved in an offense is essentially a factual determination which will not be disturbed on appeal absent a showing that it is clearly erroneous. United States v. Sanchez, 914 F.2d 206, 207 (10th Cir.1990); United States v. Strickland, 941 F.2d 1047, 1050 (10th Cir.), cert. denied, - U.S. -, 112 S.Ct. 614, 116 L.Ed.2d 636 (1991). Mr. Williams contends that because his embezzlements were accomplished in an extremely simple manner, the trial court erred in applying the enhancement. He claims each embezzlement only took seconds to complete, and there was no need to engage in elaborate planning prior to commission of the offense. Further, he argues that use of the initials “M.L.” on one occasion does not constitute the taking of significant steps to conceal the offense. Finally, he asserts each instance of the crime was purely opportune. We reject Mr. Williams’ contentions. To complete these embezzlements, Mr. Williams was required to access and make computer entries on Mr. Mahomes’ master military pay account in the separation sections of the Finance Center. Next, using a second access code, he had to access a second computer in the payroll area to cause the checks to be issued. Last, he needed to complete several items of paperwork for each transaction. Additionally, more than minimal planning is deemed present in any case involving repeated acts over a period of time. The embezzlements at issue transpired over a period of six months and involved numerous computer entries. Finally, Mr. Williams’ use of Mitch Logan’s initials and use of his various positions within the center to conceal his activities were significant steps taken to conceal the embezzlements. Under these facts, the trial court’s finding of more than minimal planning is not clearly erroneous. AFFIRMED. . See, e.g., United States v. Hill, 915 F.2d 502, 506-07 (9th Cir.1990);" }, { "docid": "16947539", "title": "", "text": "Accordingly, McCoy’s offense level was properly increased by eight levels pursuant to U.S.S.G. § 2F1.1(b)(1). B McCoy’s second challenge is to the two-point increase she received under Guideline § 2F1.1(b)(2) for “more than minimal planning.” The Guidelines define that phrase as follows: “More than minimal planning” means more planning than is typical for commission of the offense in a simple form. “More than minimal planning” also exists if significant affirmative steps were taken to conceal the offense.... “More than minimal planning” is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially often in property offenses. U.S.S.G. § 1B1.1, comment., n.1(f), incorporated by reference in § 2F1.1(b)(2), comment., n.2. As this definition makes clear, more than minimal planning may be found in any of the following three circumstances: (i) the offense entailed more planning than is typical for commission of the offense in a simple form; (ii) significant affirmative steps were taken to conceal the offense; or (iii) the offense involved repeated, not purely opportune acts over a period of time. McCoy’s presentence report (“PSR”), whose findings the district court adopted, recommended a more than minimal planning enhancement based on the third prong of the guideline’s framework — repeated acts that were not purely opportune. PSR ¶43. We have previously held that satisfaction of the repeated acts criterion requires at least three acts over a period of time. Kim, 23 F.3d at 515. Once three acts have been identified, more than minimal planning is “deemed” present, “unless it is clear that each instance was purely opportune.” U.S.S.G. § 1B1.1, comment., n.1(f), incorporated by reference in § 2F1.1(b)(2), comment., n.2. Every circuit that has addressed the question, including our own, has defined “purely opportune” acts as those undertaken on the spur of the moment, in response to a sudden, fortuitous opportunity of which the defendant took advantage without deliberation. Moreover, because § 1B1.1’s third prong is independent of its first, the guideline contemplates that an act may not entail more planning than" }, { "docid": "7854379", "title": "", "text": "id. § 2F1.1(b)(2). Burns also complains that the district court wrongly held him responsible for $48,600 in losses. We review the district court’s determination regarding minimal planning for clear error. United States v. Brown, 7 F.3d 1155, 1159 (5th Cir.1993). Amount of loss is reviewed under the same standard. Wimbish, 980 F.2d at 313. The Sentencing Guidelines provide for an enhancement of two offense levels “[i]f the offense involved (A) more than minimal planning, or (B) a scheme to defraud more than one victim.” U.S.S.G. § 2F1.1(b)(2). Under the Guidelines “more than minimal planning” is defined as “more planning than is typical for commission of the offense in a simple form,” or “[taking] affirmative steps ... to conceal the offense.” U.S.S.G.. § 1B1.1 cmt. 1(f). The Guidelines further provide that “ ‘[m]ore than minimal planning’ is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune.” Id. Burns argues that the district court erred in finding more than minimal planning because the record contains no evidence that he took affirmative steps to conceal his crimes. According to Burns, he was linked to only one scheme, and did not engage in repeated criminal acts. Burns argument is plainly contradicted by the record. He falsely posed as the owner and president of CQ&S when he bid on the repair work at Richwood Place Apartments. Burns also went twice to JER’s offices to accept checks that JER had issued to CQ&S. On this evidence we cannot conclude that the district court’s determination of more than minimal planning was clearly erroneous. Burns further asserts that the district court erred in finding him responsible for $48,600 in losses because he only received $4,193 for his part in the scheme. In support of that argument Burns relies on United States v. Smithson, 49 F.3d 138, 144 (5th Cir.1995), a case where we recognized that under U.S.S.G. § 2F1.1, application note 8, a sentencing court may utilize the offender’s gain as an alternative valuation method for assessing the amount of loss when the loss" }, { "docid": "8050195", "title": "", "text": "1995) (filing fraudulent tax returns for several years); United States v. Wise, 990 F.2d 1545, 1550-51 (10th Cir.1992) (execution of five notes and twelve draw letters over two and one-half years to defraud bank); United States v. Abud-Sanchez, 973 F.2d 835, 837 (10th Cir.1992) (submission of multiple fraudulent invoices to multiple health benefit providers); United States v. Lee, 973 F.2d 832, 833 (10th Cir.1992) (five separate cases of embezzlement); United States v. Williams, 966 F.2d 555, 558-59 (10th Cir.1992) (repeated acts of embezzlement); United States v. Sanchez, 914 F.2d 206, 207 (10th Cir.1990) (using a stolen credit card fifteen times). The district court’s statement that “the record reflects repeated acts over an extended period of time” is insufficient for a finding of minimal planning. Rec., Vol. IX, at 57. Without setting forth the series of acts, each of which would be criminal standing alone, we are unable to affirm the district court’s enhancement decision for more than minimal planning based on repeated acts. The third basis on which the decision to enhance for more than minimal planning may be upheld is evidence that Defendant’s crime required “more planning than is typical for commission of the offense in a simple form.” U.S.S.G. § 1B1.1(f) (emphasis added). Defendant pleaded guilty to a single violation of 18 U.S.C. § 1341. He was sentenced pursuant to Guideline § 2F1.1(b)(1)(G) for fraud and deceit involving more than $40,000 but less than $70,000. Thus, the proper inquiry is whether Defendant’s actions demonstrated a greater amount of planning than required to defraud an individual of between $40,000-$70,000 in a simple manner. In this case, the success of Defendant’s scheme to defraud depended upon his ability to successfully ingratiate himself to Mr. Cook. This required several contacts by phone, flying to Denver to meet Mr. Cook, renting a car to drive from Denver to Wyoming, development and use of false stories concerning his success in trading cattle futures, and several requests for money culminating in the receipt of Mr. Cook’s check. Taken together, these actions show a level of planning in excess of the amount of planning required" }, { "docid": "568150", "title": "", "text": "STEPHEN H. ANDERSON, Circuit Judge. Alfred A. Sanchez challenges the sentence imposed upon him after his plea of guilty to fraud by unauthorized use of an access device in violation of 18 U.S.C. § 1029(a)(2). Sanchez contends that the district court erred in assessing an increase of two levels in the base offense level because the crime involved “more than minimal planning” as provided by U.S.S.G. § 2F1.1(b)(2)(A). He also argues that he was entitled to a reduction of at least two levels in the base offense level because his role in the offense was at most that of a “minor participant.” U.S.S.G. § 3B1.2(b). We affirm. Background The facts surrounding this case are straightforward. Sanchez’ brother and his brother’s girlfriend were U.S. Postal Service employees who allegedly took credit cards from the mails and gave them to family and friends, including Sanchez. Sanchez used one credit card fifteen times during the month of January, 1988, each time forging the signature of the card’s true owner, resulting in a total loss of $3,862.84. Sanchez also brought his wife into the criminal activity, resulting in his wife’s use of three stolen cards on numerous occasions from January through August 1988. Sanchez personally used “his” stolen card at fifteen different stores. Based on these facts, the district court concluded that Sanchez’ activities involved more than “minimal planning” because the offending use of the credit card took place repeatedly at more than one location. Likewise, the court found that Sanchez’ role was more than a minor one because, among other things, Sanchez had “recruited” his wife into similar criminal activity. Discussion We review the district court’s findings both as to the amount of planning involved under § 2Fl.l(b)(2)(A), and as to Sanchez’ role in the offense as essentially factual determinations which we will not disturb on appeal absent a showing that they are clearly erroneous. See, e.g., United States v. Cianscewski, 894 F.2d 74, 82 (3d Cir.1990) (reviewing a finding of “more than minimal planning” under clearly erroneous standard); United States v. Scroggins, 880 F.2d 1204 (11th Cir.1989) (same); United States v. Lord," }, { "docid": "4408101", "title": "", "text": "offense in a simple form. “More than minimal planning” also exists if significant affirmative steps were taken to conceal the offense. “More than minimal planning” is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses. In United States v. Williams, 966 F.2d 555 (10th Cir.1992), we held a computer embezzlement scheme constituted more than minimal planning. In United States v. Sanchez, 914 F.2d 206 (10th Cir.1990), a defendant, who on fifteen occasions used a stolen credit card he received from his brother, engaged in more than minimal planning. Mr. Rice’s fraud in this case is similar and falls within the sentencing guidelines commentary. For three consecutive years, Mr. Rice employed a fairly complicated scheme to receive tax refunds. His actions are more calculated and took more planning than simply failing to report income. When coupled with the fact he conducted his scheme in three consecutive years, there is enough in the record to support the district court’s finding. Moreover, Mr. Rice argues the district court erred in enhancing his sentence by two levels under § 3B1.3 for using a special skill in the commission of his crime. Mr. Rice acknowledges that an accountant has the type of special skill contemplated by the guidelines; however, he contends the district court erred by failing to make specific findings he used his special skill to significantly facilitate either the commission or concealment of his offense. United States v. Gandy, 36 F.3d 912 (10th Cir.1994). Section 3B1.3 provides, “[i]f the defendant ... used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels.” The commentary further defines a “special skill” as “a skill not possessed by members of the general public and usually requiring substantial education, training or licensing. Examples would include pilots, lawyers, doctors, accountants, chemists and demolition experts.” U.S.S.G. § 3B1.3, comment. (n. 2) (emphasis added). In Gandy, this court outlined the two-step inquiry under § 3B1.3. First," }, { "docid": "568153", "title": "", "text": "times over three week period). Sanchez argues that he was entitled to a reduction based on his role in the offense, and to support his argument cites the fact that his wife received such a reduc tion in her sentence. Sanchez was not convicted for his role in any conspiracy however. Rather, he pled guilty to one single count of fraud involving his personal use of the stolen credit card. For this reason alone his argument fails; he is solely responsible for the crime. Moreover, Sanchez cannot insist on a relative comparison between his own crime and his wife’s conduct; the district court need not have determined that Sanchez “was or was not the least culpable participant in determining whether [his] role was ‘minor’ ” United States v. Rexford, 903 F.2d 1280, 1282 (9th Cir.1990). In any event, Sanchez clearly had knowledge of his brother’s and his wife’s activities concerning the stolen credit cards. He was responsible for instigating his wife’s use of the cards. He was solely responsible for his own personal forgeries and frauds and the resulting loss. Because the evidence appearing in the record before us supports the district court’s determination that Sanchez was not entitled to any adjustment for his role in the offense, we conclude that the court’s finding is not clearly erroneous. The judgment of the district court is AFFIRMED. 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); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument." }, { "docid": "3116707", "title": "", "text": "could act as a liaison and troubleshooter between the two. Defendant’s unique position allowed him to circumvent the Center’s checks and balances. It is clear that defendant occupied a position of trust within the Center and that he used this position both to facilitate commission of the crime and to conceal it. Therefore, the trial court has not clearly erred. II. Section 2B1.1(5) of the Guidelines mandates a two-level upward adjustment of a defendant’s base level when the offense involved more than minimal planning. “More than minimal planning” is defined in the Guidelines as more planning than is typical for commission of the offense in a simple form. “More than minimal planning” also exists if significant affirmative steps were taken to conceal the offense, ... “More than minimal planning” is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. U.S.S.G. § 1B1.1, comment, (n. 1(f)). The trial court’s finding of the amount of planning involved in an offense is essentially a factual determination which will not be disturbed on appeal absent a showing that it is clearly erroneous. United States v. Sanchez, 914 F.2d 206, 207 (10th Cir.1990); United States v. Strickland, 941 F.2d 1047, 1050 (10th Cir.), cert. denied, - U.S. -, 112 S.Ct. 614, 116 L.Ed.2d 636 (1991). Mr. Williams contends that because his embezzlements were accomplished in an extremely simple manner, the trial court erred in applying the enhancement. He claims each embezzlement only took seconds to complete, and there was no need to engage in elaborate planning prior to commission of the offense. Further, he argues that use of the initials “M.L.” on one occasion does not constitute the taking of significant steps to conceal the offense." }, { "docid": "16817433", "title": "", "text": "district court to refuse to apply the upward adjustment for “more than minimal planning” under U.S.S.G. §§ 2F1.1(b)(2) and 1B1.1, in the face of the stipulation in the plea agreement that such adjustment was applicable. We review this issue de novo. The district court stated as follows: I am not going to apply the two-level enhancement. I do not feel that Mr. Ivery did more planning than typical to commit this offense, and I think other parties are far more involved in this than he. (Joint Appendix, at 83). It is apparent that the judge made his determination based on his perception of Ivery’s rolé in the offense. This is an incorrect legal standard to apply. The applicable guideline for this offense is U.S.S.G. § 2Fl.l(b)(2), which provides that “[i]f the offense involved ... more than minimal planning ..., increase by 2 levels.” “More than minimal planning” is defined as follows: “More than minimal planning” means more planning than is typical for commission of the offense in a simple form. “More than minimal planning” also exists if significant affirmative steps were taken to conceal the offense, other than conduct to which § 3C1.1 (Obstructing or Impeding the Administration of Justice) applies. “More than minimal planning” is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses. In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. U.S.S.G. § 1B1.1, comment (n. 1(f)). Although we have not yet directly addressed this point, the Eighth Circuit has specifically held that “more than minimal planning” is determined on the basis of the overall offense, not on the role of an individual offender. U.S. v. Wilson, 955 F.2d 547 (8th Cir.1992); U.S. v. West, 942 F.2d" }, { "docid": "13077119", "title": "", "text": "PER CURIAM: Appellant W. Ray Mullins was convicted and sentenced following his guilty plea to one count of a three-count superseding indictment charging him with unlawfully transporting stolen motor vehicles in interstate commerce, a violation of 18 U.S.C. § 2312. He challenges the district court’s finding that his base offense level was due to be increased for “more than minimal planning.” We affirm. Mullins, the owner of a Mississippi ear dealership, acquired three new vehicles from three different Alabama dealerships, paying for each car with checks he knew to be worthless. Mullins then transported the cars to his dealership in Mississippi where he sold each of them as new vehicles. In calculating the appropriate sentence under the Guidelines, the district court increased Mullins’ base offense level by two points because the offense involved “more than minimal planning” under U.S.S.G. § 2B1.2(b)(4)(B). Mullins contends that the district court erred in finding “more than minimal planning,” because he argues that this “was a simple ‘bad check’ case” involving “typical” planning, and he took no steps to conceal his conduct. The Government argues that more than minimal planning was involved because Mullins committed the offense on three separate occasions and took affirmative steps to acquire the cars before transporting them from Alabama to Mississippi. The Guidelines provide that more than minimal planning exists in at least three circumstances: (1) where there is “more planning than is typical for commission of the offense in a simple form”; (2) in cases “involving repeated acts over a period of time, unless it is clear that each instance was purely opportune”; or (3) where “significant affirmative steps were taken to conceal the offense.” U.S.S.G. § 1B1.1, comment, (n. 1(f)) (emphasis added). The commentary to the Guidelines also states in relevant part: In a theft, going to a secluded area of the store to conceal the stolen item in one’s pocket would not alone constitute more than minimal planning. However, repeated instances of such thefts on several occasions would constitute more than minimal planning. Over a period of thirty days Mullins purchased three vehicles from three different Alabama" }, { "docid": "23487663", "title": "", "text": "(1988) (citation omitted). Thus, even though the determination involves an “ultimate fact” in the sense that it automatically triggers a particular legal consequence (in this case a two-step increase in offense level), “as a matter of the sound administration of justice,” it is better left to the district court. See Pierce, 108 S.Ct. at 2548-49. The term “more than minimal planning” is defined, in relevant part, as follows: “More than minimal planning” means more planning than is typical for commission of the offense in a simple form. More than minimal planning also exists if significant affirmative steps were taken to conceal the offense. “More than minimal planning” is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses. Guidelines § 1B1.1 application note 1(f). In this case, not even considering the checks sold by his wife, Cianscewski received seven stolen checks from a government informant or from his wife and sold them to undercover agents on three separate occasions over a three-week period. On each occasion, Cianscewski went to the same prearranged location, entered the vehicle of his buyer, and completed the illicit transaction. On at least one occasion, Cianscewski himself (not his wife) arranged the rendezvous. Under the definition of “more than minimal planning” quoted above, the district court’s determination that Cianscewski’s offenses involved “more than minimal planning” is not clearly erroneous. V. Acceptance of Responsibility The district court denied Cianseewski a two-level reduction for acceptance of responsibility. That adjustment is available “if the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” Guidelines § 3El.l(a). We reverse a district court’s determination whether or not to grant this reduction only if it is clearly erroneous. See United States v. Ortiz, 878 F.2d 125, 128 (3d Cir.1989). The record reflects that Cianscewski refused to cooperate with the probation officer during the preparation of the presentence report, failed to show up for his original sentencing hearing, and still contends that he was" } ]

[ { "docid": "23592570", "title": "", "text": "constitutional right to enjoy the companionship of one’s family members free from all encroachments by the state. See Valdivieso Ortiz v. Burgos, 807 F.2d 6, 8 (1st Cir.1986). “State action that affects the parental relationship only incidentally ... even though the deprivation may be permanent ... is not sufficient to establish a violation of a identified liberty interest.” Pittsley v. Warish, 927 F.2d 3, 8 (1st Cir.), cert. denied, 502 U.S. 879, 112 S.Ct. 226, 116 L.Ed.2d 183 (1991). Thus, the death of a family member will not ordinarily give those still alive a cognizable due process claim under section 1983. See Manarite v. Springfield, 957 F.2d 953, 960 (1st Cir.)(child could not sue police for failure to prevent father’s suicide), cert. denied, 506 U.S. 837, 113 S.Ct. 113, 121 L.Ed.2d 70 (1992); Valdivieso Ortiz, 807 F.2d at 10 (stepfather and siblings had no cause of action where prison guards beat inmate to death). Here, the defendants’ actions, despite the tragic outcome, were not specifically aimed at ending or affecting Soto’s relationship with her children. Nor can Soto successfully distinguish her case from the cited precedents of this court by pointing to her own mental anguish. The question is not one of a degree of suffering, but whether the plaintiff can establish a violation of federal right. While Soto’s loss was of enormous, heartbreaking magnitude, the Constitution does not protect against all harms. She herself was not deprived of a constitutionally protected interest, and she may not bring a section 1983 due process claim on her own behalf. 2. Soto’s Claim as a Representative of Her Children. In deciding Soto’s motion for reconsideration, the district court granted Soto’s request to amend her complaint so as to bring a claim as a representative of her children. The court then found that the children’s claim was foreclosed by DeShaney, dismissed the claim and denied the motion for reconsideration of the due process claim. Review of denial of a motion for reconsideration is for abuse of discretion. See Air Line Pilots Ass’n v. Precision Valley Aviation, Inc., 26 F.3d 220, 227 (1st Cir." } ]

[ { "docid": "14745219", "title": "", "text": "state officials.” Anaya Serbia v. Lausell, 646 F.Supp. 1236, 1244 (D.P.R.1986) (Citing Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980)). It is the settled law of this Circuit that family members do not have standing to sue under § 1983 in their personal capacity. Soto v. Flores, 103 F.3d 1056, 1062 (1st Cir.1997), cert. denied, 522 U.S. 819, 118 S.Ct. 71, 139 L.Ed.2d 32 (1997). “First Circuit case law holds that surviving family members cannot recover in an action brought under § 1983 for deprivation of rights secured by the federal constitution for their own damages for the victim’s death unless the unconstitutional action was aimed at the family relationship.” Robles-Vazquez v. Garcia, 110 F.3d 204, 206, n. 4 (1st Cir.1997). “The First Circuit does not recognize a parent’s or sibling’s right to maintain a § 1983 action for loss of familial association except when the government action in issue is directly aimed at the relationship between a parent and a young child.” Arroyo v. Pla, 748 F.Supp. 56, 58 (D.P.R.1990); See Also Robles-Vazquez v. Tirado Garcia, 110 F.3d 204, n. 4 (1st Cir.1997) and Manarite v. City of Springfield, 957 F.2d 953, 960 (1st Cir.1992) cert. denied, 506 U.S. 837, 113 S.Ct. 113, 121 L.Ed.2d 70. Cases that recognized a right to familial association can be divided into two categories. See Pittsley v. Warish, 927 F.2d 3, 8 (1st Cir.1991) (Dividing familial association cases into two categories). Under the first category substantive due process has been applied to prevent governmental interference in certain private decisions. Ortiz, 807 F.2d at 8 (citing Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (pro creation) and Pierce v. Society of the Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (whether to school one’s children in religious matters)). “The second category is implicated whenever the state directly seeks to change or affect the parent child relationship”. Pittsley, 927 F.2d at 8. This second category recognizes a liberty interest in “preventing governmental interference with the rearing of young children.”" }, { "docid": "11800698", "title": "", "text": "Univ. Sch. of Medicine, 976 F.2d 791, 794 (1st Cir.1992). IV. Analysis A. Rule 12(b)(6): Perez’s Standing Under Section 1983 Defendants move pursuant to Fed. R.Civ.P. 12(b)(6) to dismiss the section 1983 claims of Pérez and the conjugal partnership. The express language of section 1983 provides that only the party whose civil rights have been violated may bring a claim. See Valdivieso Ortiz v. Burgos, 807 F.2d 6, 7 (1st Cir.1986) (holding that plaintiffs could not maintain a section 1983 claim for loss of familial association unless the government action was aimed at the relationship between a parent and young child because section 1983 actions are personal and do not inure to any person other than the person injured); Jaco v. Bloechle, 739 F.2d 239, 242 (6th Cir.1984) (stating that claims brought pursuant to 42 U.S.C. section 1983 are “personal action[s] cognizable only by the party whose civil rights are violated”). “Family members do not have an independent claim under section 1983 unless the constitutionally defective conduct or omission was directed at the family relationship.” Torres v. United States, 24 F.Supp.2d 181, 183 (D.P.R.1998) (citing Brown v. Ives, 129 F.3d 209, 211 (1st Cir.1997); Robles Vazquez v. Garcia, 110 F.3d 204, 206 n. 4 (1st Cir.1997)); see also Broadnax v. Webb, 892 F.Supp. 188 (E.D.Mich.1995) (stating that allowing persons other than those whose rights have been violated to sue would open the flood gates of 42 U.S.C. § 1983 litigation to an unmanageable point). Elsa Pérez-Adorno is the wife of Edgar Rodriguez-Oquendo, the victim of the assault. Their conjugal partnership is a separate entity from either Pérez or Rodríguez and has a distinct identity. Reyes Castillo v. Cantera Ramos, Inc., 96 JTS 9 at 605; see also Maldonado Rodríguez v. Banco Central Corp., 95 JTS 48 at 806 n. 6. As the foregoing analysis demonstrates, only the victim of the civil rights violation, i.e., the victim of the assault, can maintain a section 1983 claim. From the face of the complaint it appears that Pérez and the conjugal partnership rest their section 1983 claims on Rodriguez’ civil rights violation by" }, { "docid": "2087459", "title": "", "text": "encroachments by the state. “State action that affects the parental relationship only incidentally ... though the deprivation may be permanent ... is not sufficient to establish a violation of a [sic] identified liberty interest.” Thus, the death of a family member will not ordinarily give those still alive a cognizable due process claim under section 1983. Here, the defendants’ actions, despite the tragic outcome, were not specifically aimed at ending or affecting Soto’s relationship with her children. Nor can Soto successfully distinguish her case from the cited precedents of this court by pointing to her own mental anguish. The question is not one of a degree of suffering, but whether the plaintiff can establish a violation of a federal right. While Soto’s loss was of enormous, heartbreaking magnitude, the Constitution does not protect against all harms. She herself was not deprived of a constitutionally protected interest, and she may not bring a section 1983 due process claim on her own behalf. Id. at 1062 (citation omitted). The First Circuit did not reach the issue of whether Soto, in her capacity as a representative of her dead children, had presented a due process claim that would survive summary judgment, finding that defendants were protected by qualified immunity on that claim. Id. at 1058. From these precedents it is clear that none of the plaintiffs may assert a cause of action under § 1983 in their individual capacities. Decedent is the only proper plaintiff with respect to the § 1983 action. Codefendant Toledo Davila also claims in his motion to dismiss that § 1983 actions predicated on fourth amendment violations of excessive force are not inheritable, although he cites no cases to support this proposition. But see Robles-Vázquez v. Tirado García, 110 F.3d 204 (1st Cir.1997) (case prosecuted by decedent’s heirs for use of excessive force in violation of the Fourth and Fourteenth Amendments) Section 1983 does not address the issue of the survivor-ship of an action upon death of the plaintiff. The United States Supreme Court has held that under 42 U.S.C. § 1988, state law determines the survivorship of a" }, { "docid": "14745217", "title": "", "text": "OPINION & ORDER PEREZ-GIMENEZ, District Judge. On July 23, 1999, Esteban Sierra Nieves, an inmate under the custody of the Puerto Rico Administration of Corrections, was stabbed to death by five fellow inmates. Decedent’s mother, sisters, wife and son brought action under the Fifth, Eight and Fourteenth Amendments of the United States Constitution, 42 U.S.C. § 1983, and 31 L.P.R.A. § 1802 of the Puerto Rican Civil Code. Before the Court is co-defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6) and co-defendants’ Rosello, Laboy, Rivera and Malave Motion to Join Motion to Dismiss In their motion Defendants argue that the Complaint should be dismissed because Plaintiffs lack standing to bring a civil rights action under 42 U.S.C. § 1983. Defendant’s further contend that in the event the court dismisses plaintiffs federal cause of action, the court should refuse to exercise its supplemental jurisdiction. Plaintiffs’ have duly opposed both motions to dismiss. MOTION TO DISMISS STANDARD When ruling on a 12(b)(6) motion a court must accept all well-pled factual averments as true and must draw all reasonable inferences in the plaintiffs’ favor. Berezin v. Regency Savings Bank, 234 F.3d 68, 70 (1st Cir.2000); Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir.1994). A Court should not dismiss a complaint for failure to state a claim or for lack of subject matter jurisdiction unless it is clear that plaintiff will be unable to recover under any viable theory. See La-Chapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir.1998); Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir.1994) (Citing Carney v. Resolution Trust Corp., 19 F.3d 950, 954 (5th Cir.1994)); Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, 958 F.2d 15, 17 (1st Cir.1992). However, a court will not accept plaintiffs “unsupported conclusions or interpretations of law”. Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F.2d 962, 971 (1st Cir.1993). PLAINTIFFS LACK STANDING TO SUE IN THEIR PERSONAL CAPACITIES A § 1983 cause of action can be brought by a person “who has suffered the deprivation of constitutional or certain statutory rights by virtue of the conduct of" }, { "docid": "17303549", "title": "", "text": "shooting caused Caceres to suffer “excruciating pain, fear, desperation and other emotion [sic] and physical suffering, and survived in that condition for a period of time ...” Id. at ¶ 4.39. Accordingly, plaintiffs have standing to assert a section 1983 claim on Caceres’ behalf. Lopez-Jimenez, 2010 WL 500407 at *2 (finding standing to bring a section 1983 claim in a representative capacity where the complaint alleged that the decedent “suffered extreme physical and mental pain while he was suffering a health condition that required emergency medical care.”). B. Plaintiffs’ Individual Claims “First Circuit case law holds that surviving family members cannot recover in an action brought under section 1983 for deprivation of rights secured by the federal constitution for their own damages from the victim’s death unless the unconstitutional conduct was aimed at the familial relationship.” Robles-Vazquez v. Garcia, 110 F.3d 204, 206 n. 4 (1st Cir.1997); Vargas, 2011 WL 92030, at *2. Government interference in certain private decisions, such as procreation, or with the parent-child relationship, are aimed at the family relationship for section 1983 purposes. Reyes Vargas v. Rosello Gonzalez, 135 F.Supp.2d 305, 308-09 (D.P.R.2001) (citing Pittsley v. Warish, 927 F.2d 3, 8 (1st Cir.1991)). Plaintiffs argue that they have standing because the Supervisory Defendants allegedly impeded their constitutional right to the enjoyment of their father’s and husband’s company. (Docket No. 64 at ¶ 4.37.) (“[t]he actions of defendant ... had the effect of depriving the plaintiffs herein of the company, affection, and companionship of their father and husband ... ”). “There is no absolute right to enjoy the companionship of one’s family members free from all encroachments by the state.” Soto v. Flores, 103 F.3d 1056, 1062 (1st Cir.1997). Thus, the loss of companionship, without more, is insufficient to show governmental interference aimed at the family relationship. Id.; Reyes Vargas; 135 F.Supp.2d at 305-09 (“State action that affects the parental relationship only incidentally, even though the deprivation may be permanent as in the case of an unlawful death, is not sufficient to establish a violation of an identified liberty in terest.”); Gonzalez Rodriguez v. Alvarado, 134 F.Supp.2d" }, { "docid": "2087454", "title": "", "text": "the party injured. Therefore, to state a claim under § 1983, plaintiffs must identify a right, privilege, or immunity secured by the Constitution or laws of the United States, of which codefendant Toledo Dávila has deprived them. Plaintiffs have not done so. They have identified only one right in their complaint: decedent’s right to due process of law, to enjoy life and to be free from unreasonable seizures as guaranteed by the Fourth, Fifth and/or Fourteenth Amendments of the United States Constitution. Therefore, the facts alleged in the complaint are only sufficient for decedent to state a claim under § 1983. Furthermore, plaintiffs could not state a claim under § 1983 even if they amended the complaint because they can state no liberty interest violation or due process claim based on decedent’s death. In Valdivieso Ortiz v. Burgos, 807 F.2d 6 (1st Cir.1986), the First Circuit ruled that family members do not have a constitutionally protected liberty interest in the companionship of an adult son so as to give rise to a claim under § 1983. Valdivieso Ortiz arose out of the death of Jose Valdivieso Ortiz, who was beaten to death by guards at the Guayama Regional Detention Center in Puerto Rico. The original plaintiffs in the suit were decedent’s mother, suing both on her behalf and as a representative of her son’s estate, his stepfather and his four siblings. Plaintiffs alleged that they had been deprived of their relative’s companionship, which they claimed was protected under the Fourteenth Amendment as an element of personal liberty. Defendants moved to dismiss all the claims except those filed on behalf of decedent, on the ground that relatives have no personal claim under § 1983 for the wrongful death of a family member. The district court granted the motion as to all the plaintiffs except the mother, who was allowed to prosecute both her personal claim and that of her son. The stepfather and siblings appealed. The Court of Appeals for the First Circuit found that the Supreme Court’s precedents with respect to a familial liberty interest fell into two categories. Id." }, { "docid": "2087455", "title": "", "text": "1983. Valdivieso Ortiz arose out of the death of Jose Valdivieso Ortiz, who was beaten to death by guards at the Guayama Regional Detention Center in Puerto Rico. The original plaintiffs in the suit were decedent’s mother, suing both on her behalf and as a representative of her son’s estate, his stepfather and his four siblings. Plaintiffs alleged that they had been deprived of their relative’s companionship, which they claimed was protected under the Fourteenth Amendment as an element of personal liberty. Defendants moved to dismiss all the claims except those filed on behalf of decedent, on the ground that relatives have no personal claim under § 1983 for the wrongful death of a family member. The district court granted the motion as to all the plaintiffs except the mother, who was allowed to prosecute both her personal claim and that of her son. The stepfather and siblings appealed. The Court of Appeals for the First Circuit found that the Supreme Court’s precedents with respect to a familial liberty interest fell into two categories. Id. at 8. The first related to the substantive due process right to choose for oneself in certain family matters such as procreation and rearing of children. The second category of cases held that when the state seeks to change or affect the relationship of parent and child in furtherance of a legitimate state interest, it must’ adhere to rigorous procedural safeguards. Id. Reviewing these precedents, the Court of Appeals stated: We decline, on this record, to make the leap ourselves from the realm of governmental action directly aimed at the relationship between a parent and a young child to an incidental deprivation of the relationship between appellants and their adult relative. Id. at 9 (citations omitted). Accordingly, the Court affirmed dismissal of the stepfather’s and siblings’ claim. The holding in Valdivieso Ortiz has been applied consistently in this Circuit. See, e.g, Manarite v. City of Springfield, 957 F.2d 953 (1st Cir.1992) (daughter has no liberty interest protected by due process clause in familial relationship with her father, who committed suicide while under city’s protective custody)," }, { "docid": "14745218", "title": "", "text": "draw all reasonable inferences in the plaintiffs’ favor. Berezin v. Regency Savings Bank, 234 F.3d 68, 70 (1st Cir.2000); Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir.1994). A Court should not dismiss a complaint for failure to state a claim or for lack of subject matter jurisdiction unless it is clear that plaintiff will be unable to recover under any viable theory. See La-Chapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir.1998); Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir.1994) (Citing Carney v. Resolution Trust Corp., 19 F.3d 950, 954 (5th Cir.1994)); Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, 958 F.2d 15, 17 (1st Cir.1992). However, a court will not accept plaintiffs “unsupported conclusions or interpretations of law”. Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F.2d 962, 971 (1st Cir.1993). PLAINTIFFS LACK STANDING TO SUE IN THEIR PERSONAL CAPACITIES A § 1983 cause of action can be brought by a person “who has suffered the deprivation of constitutional or certain statutory rights by virtue of the conduct of state officials.” Anaya Serbia v. Lausell, 646 F.Supp. 1236, 1244 (D.P.R.1986) (Citing Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980)). It is the settled law of this Circuit that family members do not have standing to sue under § 1983 in their personal capacity. Soto v. Flores, 103 F.3d 1056, 1062 (1st Cir.1997), cert. denied, 522 U.S. 819, 118 S.Ct. 71, 139 L.Ed.2d 32 (1997). “First Circuit case law holds that surviving family members cannot recover in an action brought under § 1983 for deprivation of rights secured by the federal constitution for their own damages for the victim’s death unless the unconstitutional action was aimed at the family relationship.” Robles-Vazquez v. Garcia, 110 F.3d 204, 206, n. 4 (1st Cir.1997). “The First Circuit does not recognize a parent’s or sibling’s right to maintain a § 1983 action for loss of familial association except when the government action in issue is directly aimed at the relationship between a parent and a young child.” Arroyo v. Pla, 748 F.Supp. 56," }, { "docid": "14745220", "title": "", "text": "58 (D.P.R.1990); See Also Robles-Vazquez v. Tirado Garcia, 110 F.3d 204, n. 4 (1st Cir.1997) and Manarite v. City of Springfield, 957 F.2d 953, 960 (1st Cir.1992) cert. denied, 506 U.S. 837, 113 S.Ct. 113, 121 L.Ed.2d 70. Cases that recognized a right to familial association can be divided into two categories. See Pittsley v. Warish, 927 F.2d 3, 8 (1st Cir.1991) (Dividing familial association cases into two categories). Under the first category substantive due process has been applied to prevent governmental interference in certain private decisions. Ortiz, 807 F.2d at 8 (citing Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (pro creation) and Pierce v. Society of the Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (whether to school one’s children in religious matters)). “The second category is implicated whenever the state directly seeks to change or affect the parent child relationship”. Pittsley, 927 F.2d at 8. This second category recognizes a liberty interest in “preventing governmental interference with the rearing of young children.” Ortiz, 807 F.2d at 8 citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (termination of parental rights) and Little v. Streater, 452 U.S. 1, 13, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981) (determining paternity). State action that affects the paren- . tal relationship only incidentally, even though the deprivation may be permanent as in the case of an unlawful death, is not sufficient to establish a violation of an identified liberty interest. Id. The actions taken by the Defendants do not fall within the two familial right categories identified by the First Circuit. The record fails to reveal, and Plaintiffs do not contend, that the government interfered with any private family decision. Nor can it be said that Defendants’ actions interfered with the rearing of a young child. At the time of his death Mr. Sierra was not only an adult, but he was also a inmate under the custody of the Corrections Department. Plaintiffs thus lack standing to sue under 42 U.S.C. § 1983 in their personal" }, { "docid": "11800697", "title": "", "text": "favor.” DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997) (citing Celotex, 477 U.S. at 322-25, 106 S.Ct. 2548). Although the ultimate burden of persuasion remains on the moving party, the nonmoving party will not defeat a properly supported motion for summary judgment by merely underscoring the “existence of some alleged factual dispute between the parties;” the requirement is that there be a genuine issue of material fact. Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. In addition, “factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248, 106 S.Ct. 2505. Under Rule 56(e) of the Federal Rules of Civil Procedure, the nonmoving party “may not rest upon the mere allegations or denials of the adverse party’s pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Summary judgment exists to “pierce the boilerplate of the pleadings and assay the parties’ proof in order to determine whether trial is actually required.” Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d 791, 794 (1st Cir.1992). IV. Analysis A. Rule 12(b)(6): Perez’s Standing Under Section 1983 Defendants move pursuant to Fed. R.Civ.P. 12(b)(6) to dismiss the section 1983 claims of Pérez and the conjugal partnership. The express language of section 1983 provides that only the party whose civil rights have been violated may bring a claim. See Valdivieso Ortiz v. Burgos, 807 F.2d 6, 7 (1st Cir.1986) (holding that plaintiffs could not maintain a section 1983 claim for loss of familial association unless the government action was aimed at the relationship between a parent and young child because section 1983 actions are personal and do not inure to any person other than the person injured); Jaco v. Bloechle, 739 F.2d 239, 242 (6th Cir.1984) (stating that claims brought pursuant to 42 U.S.C. section 1983 are “personal action[s] cognizable only by the party whose civil rights are violated”). “Family members do not have an independent claim under section 1983 unless the constitutionally defective conduct or omission was directed at the family relationship.”" }, { "docid": "17303548", "title": "", "text": "the state embracing the federal district court where the action is commenced permits recovery. Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978); Gonzalez Rodriguez v. Alvarado, 134 F.Supp.2d 451, 452-54 (D.P.R.2001). Under Puerto Rico law, a decedent’s heirs may recover for the decedent’s pain and suffering prior to death. Gonzalez Rodriguez, 134 F.Supp.2d at 454 (citing Vda. de Delgado v. Boston Insurance, 101 D.P.R. 598 (1973)). Thus, “Puerto Rican law permits an heir to bring a § 1983 action in his representative capacity only when there is a showing that the deceased has suffered prior to his death.” Id.; Lopez-Jimenez v. Pereira, No. 09-1156, 2010 WL 500407, at *2 (D.P.R. Feb. 3, 2010). The amended complaint states that the Field Officers forced Caceres to the ground and threatened to arrest him. (Docket No. 64 at ¶ 4.1.) Pagan shot Caceres several times and eventually delivered the fatal blow by shooting Caceres in the head. Id. at ¶ 4.3. The Field Officers did not aid Pagan. Id. at ¶ 4.5. The shooting caused Caceres to suffer “excruciating pain, fear, desperation and other emotion [sic] and physical suffering, and survived in that condition for a period of time ...” Id. at ¶ 4.39. Accordingly, plaintiffs have standing to assert a section 1983 claim on Caceres’ behalf. Lopez-Jimenez, 2010 WL 500407 at *2 (finding standing to bring a section 1983 claim in a representative capacity where the complaint alleged that the decedent “suffered extreme physical and mental pain while he was suffering a health condition that required emergency medical care.”). B. Plaintiffs’ Individual Claims “First Circuit case law holds that surviving family members cannot recover in an action brought under section 1983 for deprivation of rights secured by the federal constitution for their own damages from the victim’s death unless the unconstitutional conduct was aimed at the familial relationship.” Robles-Vazquez v. Garcia, 110 F.3d 204, 206 n. 4 (1st Cir.1997); Vargas, 2011 WL 92030, at *2. Government interference in certain private decisions, such as procreation, or with the parent-child relationship, are aimed at the family relationship for section" }, { "docid": "23259621", "title": "", "text": "inherited, and (2) in her own right for loss of familial association. The jury awarded her $247,000 without distinguishing between the two claims or indicating which damages belonged to which claim. Subsequently, in a different case, this court of appeals held that a parent cannot maintain a claim for loss of familial association under 42 U.S.C. § 1983 unless the government action in question is directly aimed at the relationship between a parent and young child. Valdivieso Ortiz v. Burgos, 807 F.2d 6 (1st Cir.1986). All parties concede that the decision in Valdivieso would require a new trial in respect to damages. The appellee argues, however, that we should apply the ruling in Valdi-vieso prospectively; that is to say, we should not apply it to the jury award here, which took place before the Valdivieso ruling. We must, however, apply the law in effect when we hear the case, namely, Valdi-vieso, “unless doing so would result in manifest injustice or there is a statutory direction or legislative history to the contrary.” Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974); see Simpson v. Director, Office of Workers’ Compensation Programs, United States Department of Labor, 681 F.2d 81, 84-85 (1st Cir.1982) (retroactive application of judicial decisions “is the rule, not the exception”); see also Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971) (listing factors court should consider in weighing prospective application). Here there is no statute or legislative history at issue. Nor is there “manifest injustice.” Valdivieso did not represent a change in the law of this circuit. Although some other circuits had found a cause of action somewhat similar to the personal claim plaintiff sought to assert here, Kelson v. City of Springfield, 767 F.2d 651 (9th Cir.1985); Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.1984) (recognizing parental right; rejecting right of sibling); Trujillo v. Board of County Commissioners of the County of Santa Fe, 768 F.2d 1186 (10th Cir.1985) (recognizing right but only if alleged deprivation is intentional), this circuit" }, { "docid": "10100178", "title": "", "text": "where the state action at issue was not aimed specifically at interfering with the relationship. See Trujillo v. Bd. of County Comm’rs, 768 F.2d 1186, 1190 (10th Cir.1985) (plaintiffs’ § 1983 action for the wrongful death of their son and brother while he was in state custody was properly dismissed because plaintiffs did not allege that defendants intended to deprive .them of their protected relationship with the decedent); Valdivieso Ortiz v. Burgos, 807 F.2d 6, 9 (1st Cir.1986) (declining to find violation of substantive due process right based on government action causing only an “incidental deprivation” of the relationship between appellants and their adult relative when he was allegedly beaten to death by guards while in prison); McCurdy v. Dodd, 352 F.3d 820, 830 (3d Cir.2003) (where officer shot and killed individual after he refused demands to hold up his hands, father could not recover for deprivation of his relationship with his son because the official action was not “directed at the parent-child relationship”); see also Claybrook v. Birchwell, 199 F.3d 350, 357-58 (6th Cir.2000) (adult children whose father was shot by police officers could bring action under § 1983 only as administrators of father’s estate, not for any collateral injuries suffered by themselves personally); Shaw v. Stroud, 13 F.3d 791, 804-05 (4th Cir.1994) (declining to recognize wife and minor child’s Fourteenth Amendment claim for loss of love and support of their husband and father after he was shot by police officer). But see Kelson v. City of Springfield, 767 F.2d 651, 655 (9th Cir.1985) (parents had a constitutionally protected liberty interest in the companionship and- society of their 14-year-old son and stated claim under § 1983 against school officials after their son committed suicide while at school). Courts have also been reluctant to extend the constitutional protections afforded the parent-child relationship to cases involving adult children. See Valdivieso Ortiz, 807 F.2d at 8 (noting that decedent was over 21 at the time of his death and was “not a minor child still within ‘the care, custody, and management’ of his parents”); Buterav. District of Columbia, 235 F.3d 637, 656" }, { "docid": "13456480", "title": "", "text": "the Constitution protects a parent’s relationship with his adult children in the context of state action which has the incidental effect of severing that relationship.” Russ v. Watts, 414 F.3d 783, 787 (7th Cir.2005). To date, however, no court has held that a parent possesses a constitutionally protected liberty interest in maintaining a relationship with his adult child free from indirect government interference. Rather, all circuits to address the issue “have expressly declined to find a violation of the familial liberty interest” where state action has only an incidental effect on the parent’s relationship with his adult child, and “was not aimed specifically at interfering with the relationship.” See, e.g., Russ, 414 F.3d at 791 (declining to recognize a “constitutional right to recover for the loss of the companionship of an adult child” where the parent-child relationship “is terminated as an incidental result of state action”); McCurdy v. Dodd, 352 F.3d 820, 830 (3d Cir.2003) (dismissing section 1983 claim against police officers implicated in the fatal shooting of plaintiffs son on the ground that “the fundamental guarantees of the Due Process Clause do not extend to a parent’s interest in the companionship of his independent adult child”); Valdivieso Ortiz v. Burgos, 807 F.2d 6, 9 (1st Cir.1986) (holding that stepfather of an adult inmate allegedly beaten to death by prison guards had no remedy under section 1983 for the “incidental deprivation” of his relationship with his adult stepson); cf. Trujillo v. Bd. of Cnty. Comm’rs, 768 F.2d 1186, 1189-90 (10th Cir.1985) (finding that mother had a constitutionally protected liberty interest in her relationship with her adult son, but dismissing claim against government officials allegedly responsible for son’s death where there was no allegation of the officials’ intent to interfere with the parent-adult child relationship). Most importantly, in Butera v. Dist. of Columbia, 235 F.3d at 656, the D.C. Circuit dismissed a mother’s section 1983 claim that her son’s death during his employment with the D.C. Metropolitan Police Department violated her due process right to the companionship of her adult child. As the D.C. Circuit held, “a parent does not have" }, { "docid": "17303550", "title": "", "text": "1983 purposes. Reyes Vargas v. Rosello Gonzalez, 135 F.Supp.2d 305, 308-09 (D.P.R.2001) (citing Pittsley v. Warish, 927 F.2d 3, 8 (1st Cir.1991)). Plaintiffs argue that they have standing because the Supervisory Defendants allegedly impeded their constitutional right to the enjoyment of their father’s and husband’s company. (Docket No. 64 at ¶ 4.37.) (“[t]he actions of defendant ... had the effect of depriving the plaintiffs herein of the company, affection, and companionship of their father and husband ... ”). “There is no absolute right to enjoy the companionship of one’s family members free from all encroachments by the state.” Soto v. Flores, 103 F.3d 1056, 1062 (1st Cir.1997). Thus, the loss of companionship, without more, is insufficient to show governmental interference aimed at the family relationship. Id.; Reyes Vargas; 135 F.Supp.2d at 305-09 (“State action that affects the parental relationship only incidentally, even though the deprivation may be permanent as in the case of an unlawful death, is not sufficient to establish a violation of an identified liberty in terest.”); Gonzalez Rodriguez v. Alvarado, 134 F.Supp.2d 451, 452-53 (D.P.R.2001). Plaintiffs’ contention that they have standing because the Supervisory Defendants’ conduct was “shocking to the conscience” and taken with “intent to do harm” is inapposite. (Docket No. 232 at 37-41.) Although the Supreme Court recognizes a person’s substantive due process rights upon a showing of conduct “shocking to the conscience” or carried out “with intent to do harm,” the defendant’s conduct must still be aimed at the family relationship. Reyes Vargas, 135 F.Supp.2d at 308-09. Thus, plaintiffs reliance on Porter v. Osborn, 546 F.3d 1131 (9th Cir.2008) is misplaced. In Porter, the court recognized that the decedent’s parents may assert their own cause of action for violating their Fourteenth Amendment right to the companionship and society of their children if the district court, on remand, determines the defendant acted with a “purpose to harm.” The court, however, still required the unconstitutional behavior to be aimed at the family relationship. Id. at 1136. The Ninth Circuit Court of Appeals, unlike the First Circuit Court of Appeals, affords a parent a Fourteenth Amendment right" }, { "docid": "2087456", "title": "", "text": "at 8. The first related to the substantive due process right to choose for oneself in certain family matters such as procreation and rearing of children. The second category of cases held that when the state seeks to change or affect the relationship of parent and child in furtherance of a legitimate state interest, it must’ adhere to rigorous procedural safeguards. Id. Reviewing these precedents, the Court of Appeals stated: We decline, on this record, to make the leap ourselves from the realm of governmental action directly aimed at the relationship between a parent and a young child to an incidental deprivation of the relationship between appellants and their adult relative. Id. at 9 (citations omitted). Accordingly, the Court affirmed dismissal of the stepfather’s and siblings’ claim. The holding in Valdivieso Ortiz has been applied consistently in this Circuit. See, e.g, Manarite v. City of Springfield, 957 F.2d 953 (1st Cir.1992) (daughter has no liberty interest protected by due process clause in familial relationship with her father, who committed suicide while under city’s protective custody), cert. denied, 506 U.S. 837, 113 S.Ct. 113, 121 L.Ed.2d 70 (1992); Martinez Correa v. López Feliciano, 759 F.Supp. 947 (D.P.R.1991) (common-law wife, minor child, mother, brothers, aunts and cousins do not have § 1983 claim against officer for shooting and killing their family member); Jones v. State of Rhode Island, 724 F.Supp. 25 (D.R.I.1989) (parents of deceased inmate at mental institution have no individual § 1983 claims based on right to continued family association). The First Circuit recently affirmed that relatives may not sue under § 1983 for the loss of a family member in Soto v. Flores, 103 F.3d 1056 (1997). Soto was an abused wife who had two children by her husband, Rodríguez. After nine years of abuse, she finally reported her husband to the police after a beating on April 17, 1991. Soto sought the protections of Puerto Rico’s Law 54, one of the nation’s most comprehensive domestic violence laws. P.R. Laws Ann. tit. 8, § 631-635 (Supp.1995). She told the police that her husband had threatened to kill her if" }, { "docid": "20350429", "title": "", "text": "Ortiz as requiring specific intent, and dismissing familial association claim as to minor children); Manarite ex rel. Manarite v. City of Springfield, 957 F.2d 953, 960 (1st Cir.1992) (citing Ortiz as requiring specific intent). One circuit, the Eleventh Circuit, has stated in dicta that specific intent is necessary. See Robertson v. Hecksel, 420 F.3d 1254, 1259, 1260 n. 5 (11th Cir.2005) (holding that \"a parent-child relationship between two independent adults does not invoke constitutional 'companionship' interests,” and noting in dicta that even if it were to hold that right existed, mere negligence does not implicate the due process clause, and the mother had not alleged that the officer who shot her adult son acted with \"more than negligence concerning her rights”). One circuit, the Ninth Circuit, has repeatedly stated that specific intent is not required, for adult, as well as minor, children. See Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir.2001) (holding that plaintiffs adequately alleged familial association claim with no discussion of specific intent); Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir.1991) (declining to impose Tmjillo’s specific intent requirement on familial association claims). And four circuits, the Second, Fifth, Sixth, and D.C. Circuits, have not decided the issue. See Patel, 305 F.3d at 137 (\"First, this Circuit has never held that a challenged action must be directed at a protected relationship for it to infringe on the right to intimate association. But, in any event, [plaintiff] has alleged facts sufficient to prove that the officers’ conduct was intentionally directed at his family.” (emphasis in original) (citation omitted)); Butera v. District of Columbia, 235 F.3d 637, 656 n. 23 (D.C.Cir.2001) (\"Because we hold that a parent-child relationship between two independent adults does not invoke constitutional 'companionship' interests, we do not reach [defendant’s] contention that [plaintiff's] claim fails because [defendant's] actions were not intentionally directed or aimed at her relationship with her son.”). Further, district courts within the Second Circuit have split on the issue. Compare Laureano v. Goord, No. 06-CV-7845, 2007 WL 2826649, at *12 (S.D.N.Y. Aug. 31, 2007) (requiring the intentional" }, { "docid": "7615193", "title": "", "text": "institutional conditions that led to the murder were directed toward any of the plaintiffs. Furthermore, the First Circuit made it plainly evident in Valdivieso Ortiz v. Burgos, 807 F.2d 6 (1st Cir.1986), that parents and siblings of an adult have no constitutionally-protected right under section 1983 to “freedom of personal choice in matters of family life,” Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982). Although they did not rule on the rights of a spouse and a child, we find that the general requirements of section 1983 are stringent enough to exclude even their close family rights. The alleged intentionality of the tortfeasors, that their ineptitude created conditions that encouraged the murder of Mr. Orta-Fernández, lacks the directness necessary to stretch section 1983 to even close family members. However, Mr. Orta-Fer-nández’ daughter and heir-at-law, Nora Angelí Orta-Velázquez, whose interests are represented by her mother, Ms. Velázquez-Martinez, has stated that she is suing based on her inheritance of the right to this action for her father’s pain and suffering while incarcerated at Bayam6n and during his gruesome death. 31 L.P.R.A. § 2677 (1993). See also Arroyo v. Pla, 748 F.Supp. 56, 57 (D.P.R.1990). She, along with her mother with patrias potestas over her, are the only plaintiffs who may maintain plaintiff/decedent’s action. III. Legal Standards A. Summary Judgment Standard The standard for summary judgment is straightforward and well-established: A district court should grant a summary judgment motion “if the pleadings, depositions, and answers to the interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Lipsett v. University of Puerto Rico, 864 F.2d 881, 894 (1st Cir.1988). A factual dispute is “material” if it “might affect the outcome of the suit under the governing law,” Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), and “genuine”, “if the evidence is such that a reasonable" }, { "docid": "10100177", "title": "", "text": "in the record to support their denial. The district court thus concluded: “It is clear from the facts and the totality of the circumstances before us that Russ was no longer living at home at the time of his death and that he had formed a new family unit.” Russ v. Watts, 2004 WL 1459262, at *4 (N.D.Ill. June 18, 2004). Based on this conclusion, the district court held that “Russ’ parents have not shown that they have standing to proceed in this suit” and granted summary judgment in favor of all remaining defendants. Id. Since Bell, several of our sister circuits have considered whether the Constitution protects a parent’s relationship with his adult children in the context of state action which has the incidental effect of severing that relationship. No other court of which we are aware has allowed a parent to recover for the loss of his relationship with his child in these circumstances. Most courts that have considered the issue have expressly declined to find a violation of the familial liberty interest where the state action at issue was not aimed specifically at interfering with the relationship. See Trujillo v. Bd. of County Comm’rs, 768 F.2d 1186, 1190 (10th Cir.1985) (plaintiffs’ § 1983 action for the wrongful death of their son and brother while he was in state custody was properly dismissed because plaintiffs did not allege that defendants intended to deprive .them of their protected relationship with the decedent); Valdivieso Ortiz v. Burgos, 807 F.2d 6, 9 (1st Cir.1986) (declining to find violation of substantive due process right based on government action causing only an “incidental deprivation” of the relationship between appellants and their adult relative when he was allegedly beaten to death by guards while in prison); McCurdy v. Dodd, 352 F.3d 820, 830 (3d Cir.2003) (where officer shot and killed individual after he refused demands to hold up his hands, father could not recover for deprivation of his relationship with his son because the official action was not “directed at the parent-child relationship”); see also Claybrook v. Birchwell, 199 F.3d 350, 357-58 (6th Cir.2000)" }, { "docid": "20350428", "title": "", "text": "(\"A defendant can be held liable for violating a right of intimate association only if the plaintiff shows an intent to interfere with the relationship.\" (internal quotation marks omitted)); Russ v. Watts, 414 F.3d 783, 790 (7th Cir.2005) (holding that plaintiffs must allege \"intentional action by the state to interfere with a familial relationship,” and noting that without adopting specific intent requirements for this claim, courts risk \"constitutionalizing all torts against individuals who happen to have families”); Shaw v. Stroud, 13 F.3d 791, 805 (4th Cir.1994) (refusing to extend familial association claim \"to encompass deprivations resulting from governmental actions affecting the family only incidentally”). While in Valdivieso Ortiz, 807 F.2d 6, the First Circuit was unclear about whether it had based its denial of a familial association claim on the lack of specific intent or the fact that the child at issue was an adult, in subsequent cases the First Circuit has clarified that even in cases involving minor children, specific intent is required. See Soto v. Flores, 103 F.3d 1056, 1062 (1st Cir.1997) (citing Ortiz as requiring specific intent, and dismissing familial association claim as to minor children); Manarite ex rel. Manarite v. City of Springfield, 957 F.2d 953, 960 (1st Cir.1992) (citing Ortiz as requiring specific intent). One circuit, the Eleventh Circuit, has stated in dicta that specific intent is necessary. See Robertson v. Hecksel, 420 F.3d 1254, 1259, 1260 n. 5 (11th Cir.2005) (holding that \"a parent-child relationship between two independent adults does not invoke constitutional 'companionship' interests,” and noting in dicta that even if it were to hold that right existed, mere negligence does not implicate the due process clause, and the mother had not alleged that the officer who shot her adult son acted with \"more than negligence concerning her rights”). One circuit, the Ninth Circuit, has repeatedly stated that specific intent is not required, for adult, as well as minor, children. See Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir.2001) (holding that plaintiffs adequately alleged familial association claim with no discussion of specific intent); Ward v. City of San Jose," } ]

[ { "docid": "923495", "title": "", "text": "PER CURIAM. Petitioner seeks a writ of mandamus to compel the transmission of the record in this litigation by the clerk of the District Court for the District of Puerto Rico. Petitioner is one of a number of defendants in a suit alleging misuse of union welfare funds. On December 18, 1974, over eight years after the initiation of the suit, the district court filed an extensive opinion and order holding that it had jurisdiction over some of the defendants under 29 U.S.C. § 501, and that in the interests of justice and judicial economy it should exercise pendent jurisdiction over the remaining defendants, including petitioner, permitting plaintiffs to litigate in one court their federal and state claims. Acknowledging the difficulty of the question of jurisdiction, the district court made the proper certification to permit defendants to apply to this court for permission to take an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Petitioner, instead of filing a petition for permission to appeal with this court, as required by § 1292(b) and Federal Rule of Appellate Procedure 5(a), filed a notice of appeal in the district court. On March 14, 1975, the district court, noting that the proper application for leave to appeal had not been filed, recertified the question of jurisdiction, “in order that the parties not be deprived of a timely appellate decision”. In its order the court directed counsel’s attention to § 1292(b) and F.R.A.P. 5(a). Incredibly, petitioner once again failed to file an application for leave to appeal with this court, filing instead a new notice of appeal in the district court. Petitioner postulates its request for mandamus on the claim that its right to appeal is being obstructed by the failure of the clerk of the district court to transmit the record on appeal. Federal Rule of Appellate Procedure 3(a) provides that “[a]n appeal permitted by law as of right from a district court to a court of appeals shall be taken by filing a notice of appeal with the clerk of the district court . . . . Appeals by permission under 28" } ]

[ { "docid": "23065355", "title": "", "text": "the extent of reexamination by the district court necessary to constitute the kind of reconsideration that revives the right to petition for appeal. The Sixth Circuit has held that the district court may not vacate an interlocutory order from which no application for permission to appeal was timely filed and refile the same order for the sole purpose of permitting the party wishing to appeal to make a timely application. Woods v. Baltimore and Ohio R. R. Co., 441 F.2d 407 (6th Cir. 1971). See Nakhleh v. Chemical Construction Corp., 366 F.Supp. 1221 (S.D.N.Y.1973) (reconsideration sufficient to permit recertification must involve some “substantial” issue going to the merits of the order). The Woods holding is based on the rationale that the district court should not be allowed indirectly to extend the jurisdictional time period. In support of the Sixth Circuit’s position, it may be argued that the restricted time authorized for initiating an interlocutory appeal reflects an interest in speedy determination of such appeals. See Braden v. University of Pittsburgh, 552 F.2d 948, 952 (3d Cir. 1977) (en banc). However, the notion that the appeal must follow immediately the entry of the district court’s order is repudiated by Rule 5(a), Fed.R.App.P., which permits the amendment of the interlocutory order “at any time” to supply the certification statement and provides that such an amendment triggers the running of the ten-day period for applying to this court for permission to appeal. Because the interlocutory order can be amended at any time in order to incorporate the certification language, the lapse of an extended period of time between the entry of the interlocutory order and the appeal pursuant to 28 U.S.C. § 1292(b) is countenanced by Rule 5(a). Braden v. University of Pittsburgh, 552 F.2d at 952. In effect, the ten-day limitation period functions largely to assure that the district court will exercise its discretion to certify an appeal from its interlocutory order contemporaneously with this court’s discretionary grant of permission to proceed with the interlocutory appeal. 9 Moore’s Federal Practice 1205.-03[2], at 5-9 (2d ed. 1980). We conclude that the ten-day time" }, { "docid": "14272479", "title": "", "text": "for failure to timely appeal from both final judgment and nonfi-nal orders and judgments. The elimination of the remedy for failure to receive notice from the clerk for nonfinal orders and judgments was seemingly the result of an oversight. The Third Circuit concluded that Rule 77(d) should “not be read woodenly so as to preclude such relief in the interlocutory situation, particularly given its limited purpose — to protect the finality of judgments.” Id. at 954. The interest in the finality of judgments would not be affected by reconsideration and reentry of an interlocutory order. The Third Circuit stated: “[W]e do not read Rule 77(d) and its precursors to forestall the district court from granting relief because of its own failure to provide adequate notice to the defendants. It was in response to defendants’ petition that the district court entered the certification in the first instance. As a result, it was not unreasonable for the defendants to await- notice of any action which had been taken on their petition— especially since no party has been prejudiced by the reentry of the certification order.” Id. at 954-55. The Third Circuit based its ruling on the broad power that a district court has over a case before a final judgment is entered. See Hall v. Cmty. Mental Health Ctr., 772 F.2d 42, 43 (3d Cir.1985). In this case, as distinguished from the petitioner in Woods, the City did not miss the 10 day filing period through its own inadvertence. It was the hapless party identified in Braden. When neither party received timely notice of the first certification order, the district court 'sua sponte attempted to cure that error by extending the filing period. The City then filed a petition for permission to appeal. When this Court held that the district court did not have authority to extend the filing period, the City promptly asked the district court to vacate and reenter the certification order. The missed filing deadline and improper attempt to extend the filing period were the results of the actions of the district court and not the City. Any prejudice" }, { "docid": "19361177", "title": "", "text": "that § 1292(b) should be used sparingly and thus that its requirements must be strictly construed. See Milbert v. Bison Laboratories, Inc., supra, 260 F.2d 431 (petition was filed 10 days late). Defendants attempt to argue that their untimeliness was due to excusable neglect. There is no provision for waiver, however, in the applicable statute or rule. See Braden v. University of Pittsburgh, supra; Nakhleh v. Chemical Construction Corp., 366 F.Supp. 1221 (S.D.N.Y.1973). Cf. Fed. R.App.P. 4(a). In sum, the defendants’ failure to comply with 28 U.S.C. § 1292 and Fed.R.App.P. 5(a) precludes, as of the present time, appellate review of their diversity jurisdiction claim. Accordingly, their appeal is DISMISSED. . The father of Jennifer Michelle Edwards, a potential beneficiary, remained throughout a South Carolina citizen and hence not diverse. . It is not clear, however, whether a district court may in effect enlarge the time for appealing from a certified order by vacating and reentering or amending an order of certification so as arguably to commence the running anew of the 10 day period. Nuclear Engineering Co. v. Scott, supra, 660 F.2d at 246 (citing cases). Indeed, such a course appears more properly within the dual judicial discretion contemplated by the drafters of § 1292(b). See C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure § 3929. Of course, the district court here has not had the opportunity to consider the various factors entering into such a decision: the delay engendered by the defendants' untimeliness (particularly if, as here, proceedings have been stayed pending appeal), prejudice, Braden v. University of Pittsburgh, 552 F.2d 948 (3d Cir.1977), whether counsel’s untimeliness was due to excusable neglect, e.g., Woods v. Baltimore & Ohio R.R. Co., 441 F.2d 407, 408 (6th Cir.1971), and the substantive merit of the question presented. . Counsel for the defendants maintain that they deposited the appropriate filing papers with their internal mail room with sufficient alacrity to permit timely service by Federal Express. They insist that any culpability for the late delivery must be ascribed to neglect by the mail room personnel or Federal Express." }, { "docid": "23065353", "title": "", "text": "the parties’ failure to raise the jurisdictional issue. The district court included in an interlocutory order entered on November 20, 1979, the statement required by 28 U.S.C. § 1292(b) to certify an appeal from that order. Leave to petition this court, to con sider the appeal was granted by the district court provided the application was made within ten days of the date of the district court’s order as required by 28 U.S.C. § 1292(b). Although Aparicio filed a notice of appeal within ten days of the issuance of the district court’s order, he failed to apply for permission to appeal within the ten-day statutory period. Therefore, the appeal lapsed. Over a year after the district court’s order issued, another judge serving on that court entered a second order adopting the earlier order and, in effect, recertifying the interlocutory appeal. Within ten days of the issuance of the second order, Aparicio petitioned this court for leave to appeal from the original interlocutory order. Although we granted that application, our jurisdiction to do so is open to discussion. Failure to file an application for permission to appeal from an interlocutory order containing the certification statement within the ten-day period prescribed by 28 U.S.C. § 1292(b) and Rule 5(a), Fed.R. App.P., is a jurisdictional defect that deprives the appellate court of power to entertain the appeal. The Federal Rules of Appellate Procedure specifically preclude enlargement of this period by the court of appeals, Rule 26(b), Fed.R.App.P., and there is no statutory authority allowing the district court to extend the time period. 9 Moore’s Federal Practice 1205.08[2], at 5-8 (2d ed. 1980). However, we noted in Borskey v. American Pad & Textile Co., 296 F.2d 894, 895 (5th Cir. 1961), that the district court retains jurisdiction over the matter until a final judgment is entered and is, therefore, free to reconsider its interlocutory order. The district court’s action upon reconsideration may then be the subject of certification and application for interlocutory appeal under 28 U.S.C. § 1292(b). Borskey v. American Pad & Textile Co., 296 F.2d at 895 (dictum). We have not considered" }, { "docid": "23272899", "title": "", "text": "it might well follow that a § 1292(b) petitioner would have no remedy for failure to receive notice. The proviso of Rule 77(d), applicable only to appeals as of right, contains no authorization for relief in permissive appeals, such as the one at hand. The question thus arises whether a district court may accomplish indirectly what it may not do directly. At least one court of appeals has sanctioned such a procedure. In In re La Providencia Development Corp., the First Circuit upheld a district court which had vacated and reentered its certificate “ ‘in order that the parties not be deprived of a timely appellate decision.’ ” On the other hand, two courts appear to have indicated that vacation and recertification are tantamount to enlarging the time for appeal, and that such a maneuver (Vis proscribed by Rule 77(d). In Woods v. Baltimore & Ohio Railroad, the appealing party neglected to file a timely petition, even though he apparently had received adequate notice. After the district court had vacated and reentered its certification order, the appellate court held that such action could not confer jurisdiction over the interlocutory appeal because a district court has no power to extend the time for appeal, either directly or indirectly. The reasoning of the Woods court was embraced in Nakhleh v. Chemical Construction Corp. There the appellant was not aware that an interlocutory order had been entered, because the order had been listed under the wrong initial letter in the local law journal. The district judge stated that, while he could vacate his order should new facts or new decisional law necessitate reconsideration, he could not vacate and refile a certification order merely to extend the time for appeal. It should be noted, however, that no attempt was made by the Nakhleh court to distinguish between the plight of the hapless party who, through inadvertence, received no notice, and that of the neglectful party, such as the party in Woods, who simply is remiss in pursuing his appeal. Nakhleh thus did not explore the outer limits of the rules which do not literally" }, { "docid": "22924788", "title": "", "text": "1292(b) appeal process where, for example, the court of appeals affirms the order certified, based upon its agreement with the district court’s resolution of the legal question, but fails to reach other questions material to the order that were erroneously decided by the district court. Hence, when the district court in the instant case on June 25, 1980 certified its order denying Illinois’ motions, all material questions decided in that order, including the question of whether federal question jurisdiction existed over the cases, would have been properly before this Court if an appeal had been timely filed and accepted. The July 3, 1980 amendment to the June 25, 1980 order was therefore superfluous. Clearly, this Court may not enlarge the time for filing an appeal pursuant to section 1292(b). Fed.R.App.P. 26(b). However, it is not so clear whether this Court may permit a district court to in effect enlarge the time for appealing from a certified order by vacating and reentering or amending an order of certification so as to arguably recommence the running of the 10 day period. That issue has been grappled with by few courts, all of them outside of this Circuit. Braden v. University of Pittsburgh, 552 F.2d 948 (3d Cir. 1977); In re La Providencia Development Corp., 515 F.2d 94 (1st Cir. 1975); Woods v. Baltimore & Ohio R.R. Co., 441 F.2d 407 (6th Cir. 1971); Borskey v. American Pad & Textile Co., 296 F.2d 894 (5th Cir. 1961); Nakhleh v. Chemical Construction Corp., 366 F.Supp. 1221 (S.D.N.Y.1973). None of these cases resolved the precise issue before this Court, and the only principle common to most of the above decisions is that a district court may not reenter a certification order to enlarge the time for appeal when the failure to timely appeal from the original certification order was due solely to mere neglect of counsel. E. g., Woods v. Baltimore & Ohio R.R. Co., 441 F.2d at 408. But see In re La Providencia Development Corp., 515 F.2d at 95. Nakhleh and Borskey stand for the proposition that reentry of an order of certification" }, { "docid": "23065354", "title": "", "text": "to discussion. Failure to file an application for permission to appeal from an interlocutory order containing the certification statement within the ten-day period prescribed by 28 U.S.C. § 1292(b) and Rule 5(a), Fed.R. App.P., is a jurisdictional defect that deprives the appellate court of power to entertain the appeal. The Federal Rules of Appellate Procedure specifically preclude enlargement of this period by the court of appeals, Rule 26(b), Fed.R.App.P., and there is no statutory authority allowing the district court to extend the time period. 9 Moore’s Federal Practice 1205.08[2], at 5-8 (2d ed. 1980). However, we noted in Borskey v. American Pad & Textile Co., 296 F.2d 894, 895 (5th Cir. 1961), that the district court retains jurisdiction over the matter until a final judgment is entered and is, therefore, free to reconsider its interlocutory order. The district court’s action upon reconsideration may then be the subject of certification and application for interlocutory appeal under 28 U.S.C. § 1292(b). Borskey v. American Pad & Textile Co., 296 F.2d at 895 (dictum). We have not considered the extent of reexamination by the district court necessary to constitute the kind of reconsideration that revives the right to petition for appeal. The Sixth Circuit has held that the district court may not vacate an interlocutory order from which no application for permission to appeal was timely filed and refile the same order for the sole purpose of permitting the party wishing to appeal to make a timely application. Woods v. Baltimore and Ohio R. R. Co., 441 F.2d 407 (6th Cir. 1971). See Nakhleh v. Chemical Construction Corp., 366 F.Supp. 1221 (S.D.N.Y.1973) (reconsideration sufficient to permit recertification must involve some “substantial” issue going to the merits of the order). The Woods holding is based on the rationale that the district court should not be allowed indirectly to extend the jurisdictional time period. In support of the Sixth Circuit’s position, it may be argued that the restricted time authorized for initiating an interlocutory appeal reflects an interest in speedy determination of such appeals. See Braden v. University of Pittsburgh, 552 F.2d 948, 952 (3d" }, { "docid": "14272477", "title": "", "text": "even if the petitioner through its own inadvertence failed to take advantage of the original certification as long as the district court finds that the previous justification for interlocutory appeal continues to exist. Aparicio v. Swan Lake, 643 F.2d 1109, 1112 (5th Cir.1981). To hold otherwise would preclude an interlocutory appeal where the criteria under § 1292(b) are met, and both the district court and the court of appeals have concluded that an interlocutory appeal is appropriate. Id. In Marisol v. Giuliani, 104 F.3d 524, 528-29 (2d Cir.1996), the Second Circuit decided that recertification is proper if it serves judicial efficiency and advances the purposes of § 1292(b). Accord In re Benny, 812 F.2d 1133, 1137 (9th Cir.1987); and Nuclear Eng’g Co. v. Scott, 660 F.2d 241, 247 (7th Cir.1981). In Safety-Kleen, Inc. (Pinewood) v. Wyche, 274 F.3d 846, 867 (4th Cir.2001), the Fourth Circuit found that in order to recertify, a district court must also find (1) that the petitioner’s failure to timely file under the original certification order was a result of excusable neglect and (2) that there is no prejudice to the other party in recertifying the interlocutory order. • In Braden v. University of Pittsburgh, 552 F.2d 948, 952 (3d Cir.1977), the Third Circuit distinguished between the hapless party who did not receive timely notice and the neglectful party who was simply remiss in pursuing the appeal. The court discussed the evolution of Fed.R.Civ.P. 77(d) and Fed. R.App. P. 4(a). Id. at 953-54. Rule 77(d) states that failure to receive notice of entry of an order from the clerk of the court does not affect the time for appeal or authorize the court to relieve a party for failure to appeal within the time allowed except as permitted by Appellate Rule 4(a). The purpose behind Rule 77(d) was to protect the finality of judgments. Appellate Rule 4(a) pertains to appeals as of right from final judgments and authorizes extending the time to appeal when notice is not received from the clerk. The language in Appellate Rule 4(a) was derived from former Rule 73(a), which permitted relief" }, { "docid": "14272476", "title": "", "text": "10 day time limitation, if not a nullity, essentially within the discretion of a district court to extend at will.” Id. at 162, 104 S.Ct. 1723. In Woods, 441 F.2d at 408, we refused to allow the district court to vacate and, without reconsideration, reenter the certification order. The petitioner in Woods missed the original filing deadline through its own inadvertence. We reasoned that the district court could not do indirectly what it could not do directly. We declined to decide, however, “whether, following expiration of the time period for the filing of an application for permission to appeal, the Court of Appeals could acquire jurisdiction upon the District Court’s reconsideration of its prior order and the timely filing of an application after the entry of such order upon reconsideration.” Id. Other circuits allow the district court to vacate and reenter a certification order to permit a timely appeal. The Fifth Circuit concluded that because the district court retains jurisdiction until final judgment, it can reconsider an interlocutory order. The Fifth Circuit, therefore, permits re-certification even if the petitioner through its own inadvertence failed to take advantage of the original certification as long as the district court finds that the previous justification for interlocutory appeal continues to exist. Aparicio v. Swan Lake, 643 F.2d 1109, 1112 (5th Cir.1981). To hold otherwise would preclude an interlocutory appeal where the criteria under § 1292(b) are met, and both the district court and the court of appeals have concluded that an interlocutory appeal is appropriate. Id. In Marisol v. Giuliani, 104 F.3d 524, 528-29 (2d Cir.1996), the Second Circuit decided that recertification is proper if it serves judicial efficiency and advances the purposes of § 1292(b). Accord In re Benny, 812 F.2d 1133, 1137 (9th Cir.1987); and Nuclear Eng’g Co. v. Scott, 660 F.2d 241, 247 (7th Cir.1981). In Safety-Kleen, Inc. (Pinewood) v. Wyche, 274 F.3d 846, 867 (4th Cir.2001), the Fourth Circuit found that in order to recertify, a district court must also find (1) that the petitioner’s failure to timely file under the original certification order was a result of excusable" }, { "docid": "14272475", "title": "", "text": "this court of the power to entertain an appeal. Neither the district court nor the court of appeals can extend the 10-day period. Woods v. Baltimore & Ohio R.R. Co., 441 F.2d 407, 408 (6th Cir.1971). See also fed. R.App. P. 26(b)(1). The question presented here is whether the district court can restart the 10-day period by vacating its original certification order and then reentering the order. In Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984), the district court had recertified its original interlocutory order nine months after the original 10-day period had expired due to the appellant’s failure to properly file its petition in the circuit court for leave to appeal. The majority reached the merits of the appeal without mentioning this procedural history. Justice Stevens (joined by Justices Brennan and Marshall) noted these facts, and stated that he was “persuaded by the view, supported by the commentators, that interlocutory appeals in these circumstances should be permitted, notwithstanding the fact that this view essentially renders the 10 day time limitation, if not a nullity, essentially within the discretion of a district court to extend at will.” Id. at 162, 104 S.Ct. 1723. In Woods, 441 F.2d at 408, we refused to allow the district court to vacate and, without reconsideration, reenter the certification order. The petitioner in Woods missed the original filing deadline through its own inadvertence. We reasoned that the district court could not do indirectly what it could not do directly. We declined to decide, however, “whether, following expiration of the time period for the filing of an application for permission to appeal, the Court of Appeals could acquire jurisdiction upon the District Court’s reconsideration of its prior order and the timely filing of an application after the entry of such order upon reconsideration.” Id. Other circuits allow the district court to vacate and reenter a certification order to permit a timely appeal. The Fifth Circuit concluded that because the district court retains jurisdiction until final judgment, it can reconsider an interlocutory order. The Fifth Circuit, therefore, permits re-certification" }, { "docid": "14272478", "title": "", "text": "neglect and (2) that there is no prejudice to the other party in recertifying the interlocutory order. • In Braden v. University of Pittsburgh, 552 F.2d 948, 952 (3d Cir.1977), the Third Circuit distinguished between the hapless party who did not receive timely notice and the neglectful party who was simply remiss in pursuing the appeal. The court discussed the evolution of Fed.R.Civ.P. 77(d) and Fed. R.App. P. 4(a). Id. at 953-54. Rule 77(d) states that failure to receive notice of entry of an order from the clerk of the court does not affect the time for appeal or authorize the court to relieve a party for failure to appeal within the time allowed except as permitted by Appellate Rule 4(a). The purpose behind Rule 77(d) was to protect the finality of judgments. Appellate Rule 4(a) pertains to appeals as of right from final judgments and authorizes extending the time to appeal when notice is not received from the clerk. The language in Appellate Rule 4(a) was derived from former Rule 73(a), which permitted relief for failure to timely appeal from both final judgment and nonfi-nal orders and judgments. The elimination of the remedy for failure to receive notice from the clerk for nonfinal orders and judgments was seemingly the result of an oversight. The Third Circuit concluded that Rule 77(d) should “not be read woodenly so as to preclude such relief in the interlocutory situation, particularly given its limited purpose — to protect the finality of judgments.” Id. at 954. The interest in the finality of judgments would not be affected by reconsideration and reentry of an interlocutory order. The Third Circuit stated: “[W]e do not read Rule 77(d) and its precursors to forestall the district court from granting relief because of its own failure to provide adequate notice to the defendants. It was in response to defendants’ petition that the district court entered the certification in the first instance. As a result, it was not unreasonable for the defendants to await- notice of any action which had been taken on their petition— especially since no party has been" }, { "docid": "22619055", "title": "", "text": "in the Court of Appeals is mandatory and jurisdictional. The jurisdictional question in this case is whether the 10-day time limitation imposed by § 1292(b) and Federal Rule of Appellate Procedure 5(a), a time period which may not be enlarged, Fed. Rule App. Proc. 26(b), can be circumvented by simply reentering the interlocutory order for the sole purpose of extending the time for filing the petition. There is a conflict in the Circuits on this jurisdictional question, compare, e. g., Woods v. Baltimore & Ohio R. Co., 441 F. 2d 407, 408 (CA6 1971) (per curiam), and Nakhleh v. Chemical Construction Corp., 366 F. Supp. 1221, 1222-1223 (SDNY 1973), with Aparicio v. Swan Lake, 643 F. 2d, at 1110-1113; see also Nuclear Engineering Co. v. Scott, 660 F. 2d 241, 245-248 (CA7 1981) (describing the jurisdictional question as a “rather thorny” one, id., at 245, and observing that the principle common to most cases on point “is that a district court may not re-enter a certification order to enlarge the time for appeal when the failure to timely appeal from the original certification order was due solely to mere neglect of counsel,” id., at 246), cert. denied sub nom. Nuclear Engineering Co. v. Fahner, 455 U. S. 993 (1982); Braden v. University of Pittsburgh, 552 F. 2d 948, 949-955 (CA3 1977) (en banc) (distinguishing Woods and Nakhleh but suggesting in dictum disagreement with those cases); see generally 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice ¶205.03[2], pp. 5-8 to 5-11 (1983); 16 C. Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice and Procedure §3929, pp. 153-155, §3951, p. 869 (1977); Note, Interlocutory Appeals in the Federal Courts Under 28 U. S. C. § 1292(b), 88 Harv. L. Rev. 607, 615-616 (1975). It is of course our duty to recognize a jurisdictional question of this kind sua sponte. It is quite plain that the District Court in the instant case recertified the interlocutory order nine months after the time for petitioning had expired for the purpose of permitting what would otherwise be a time-barred interlocutory appeal." }, { "docid": "22619056", "title": "", "text": "failure to timely appeal from the original certification order was due solely to mere neglect of counsel,” id., at 246), cert. denied sub nom. Nuclear Engineering Co. v. Fahner, 455 U. S. 993 (1982); Braden v. University of Pittsburgh, 552 F. 2d 948, 949-955 (CA3 1977) (en banc) (distinguishing Woods and Nakhleh but suggesting in dictum disagreement with those cases); see generally 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice ¶205.03[2], pp. 5-8 to 5-11 (1983); 16 C. Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice and Procedure §3929, pp. 153-155, §3951, p. 869 (1977); Note, Interlocutory Appeals in the Federal Courts Under 28 U. S. C. § 1292(b), 88 Harv. L. Rev. 607, 615-616 (1975). It is of course our duty to recognize a jurisdictional question of this kind sua sponte. It is quite plain that the District Court in the instant case recertified the interlocutory order nine months after the time for petitioning had expired for the purpose of permitting what would otherwise be a time-barred interlocutory appeal. While I think the jurisdictional question here is a close one, and believe that we should not decide it in a summary fashion, I concur in the majority’s holding that there is jurisdiction. I am presently persuaded by the view, supported by the commentators, that interlocutory appeals in these circumstances should be permitted, notwithstanding the fact that this view essentially renders the 10-day time limitation, if not a nullity, essentially within the discretion of a district court to extend at will. Ill I will not engage in the task of identifying the nature and source of all of the failures to observe the procedural re quirements imposed by the Legislature in this case. As to whether it is fair to say on this record that respondent failed to act diligently to preserve her claim when she was acting pro se, I think the record largely speaks for itself. I might observe that if there had been strict adherence to the Federal Rules of Civil Procedure, in all likelihood this lawsuit would have ended in January" }, { "docid": "14272474", "title": "", "text": "appeal to this court. On January 9, 2001, the district court sua sponte entered an order granting the City an additional 30 days to file the interlocutory appeal. On May 1, 2001, this court denied the application for interlocutory appeal finding that the district court could not extend the 10 day period under 28 U.S.C. § 1292(b). On May 17, 2001, the City filed a motion asking the district court to vacate and reenter its certification order. On July 5, 2001, the district court vacated its December 20, 2000 order. After considering anew whether certification would achieve the ends of § 1292(b), the district court reentered its certification order. On July 12, 2001, the City filed an application for permission to appeal. II. A. Timeliness of the Appeal Under 28 U.S.C. § 1292(b), an application for appeal must be made within 10 days after the entry of the district court’s certification order. See also Fed. R.App. P. 5(a)(2) and (3). Failure to file an appeal within the 10-day period is a jurisdictional defect that deprives this court of the power to entertain an appeal. Neither the district court nor the court of appeals can extend the 10-day period. Woods v. Baltimore & Ohio R.R. Co., 441 F.2d 407, 408 (6th Cir.1971). See also fed. R.App. P. 26(b)(1). The question presented here is whether the district court can restart the 10-day period by vacating its original certification order and then reentering the order. In Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984), the district court had recertified its original interlocutory order nine months after the original 10-day period had expired due to the appellant’s failure to properly file its petition in the circuit court for leave to appeal. The majority reached the merits of the appeal without mentioning this procedural history. Justice Stevens (joined by Justices Brennan and Marshall) noted these facts, and stated that he was “persuaded by the view, supported by the commentators, that interlocutory appeals in these circumstances should be permitted, notwithstanding the fact that this view essentially renders the" }, { "docid": "14272480", "title": "", "text": "prejudiced by the reentry of the certification order.” Id. at 954-55. The Third Circuit based its ruling on the broad power that a district court has over a case before a final judgment is entered. See Hall v. Cmty. Mental Health Ctr., 772 F.2d 42, 43 (3d Cir.1985). In this case, as distinguished from the petitioner in Woods, the City did not miss the 10 day filing period through its own inadvertence. It was the hapless party identified in Braden. When neither party received timely notice of the first certification order, the district court 'sua sponte attempted to cure that error by extending the filing period. The City then filed a petition for permission to appeal. When this Court held that the district court did not have authority to extend the filing period, the City promptly asked the district court to vacate and reenter the certification order. The missed filing deadline and improper attempt to extend the filing period were the results of the actions of the district court and not the City. Any prejudice from the delay and briefing on the initial petition were caused by the district court. This should not preclude the district court from granting relief through reconsideration of the interlocutory order. Also as distinguished from Woods, after vacating the original certification order, the district court reconsidered and specifically found that certification was still proper under § 1292(b). We agree with the other circuits that it is within the broad power of the district court to reconsider an interlocutory order, particularly to avoid an injustice to a party caused by the inadvertent acts of the district court. We find, therefore, that we have jurisdiction to consider the City’s application for permission to appeal. It is not necessary and we decline to decide whether a district court can recertify an interlocutory order when the appellant misses the original filing period through its own inadvertence. B. Requirements for Interlocutory Appeal This court in its discretion may permit an appeal to be taken from an order certified for interlocutory appeal if (1) the order involves a controlling question of" }, { "docid": "22619067", "title": "", "text": "a specific order and deciding whether on the facts of the case before it, the District Court erred in entering the order. It is, however, clear that the decision in Wrenn, upon which the court below relied, leaves ample room for dismissals when plaintiffs slumber on their rights. See, e. g., Potts v. Southern R. Co., 524 F. Supp. 513 (ND Ga. 1981). In the end, the District Court’s dismissal of respondent’s race discrimination claim amounted to no more than a sanction for her failure to refile her request for appointment of counsel on the correct forms quickly enough to suit the Magistrate. The majority opinion in this Court amounts to little more, the Court telling us that she “was told three times what she must do to preserve her claim, and she did not do it.” Ante, at 151. Of course, she had done it, but the majority does not even seem to care. I respectfully dissent. E. g., General Television Arts, Inc. v. Southern R. Co., 725 F. 2d 1327, 1330 (CA11 1984); Nuclear Engineering Co. v. Scott, 660 F. 2d 241, 245-248 (CA7 1981), cert. denied sub nom. Nuclear Engineering Co. v. Fahner, 455 U. S. 993 (1982); Aparicio v. Swan Lake, 643 F. 2d 1109, 1111 (CA5 1981); Local P-171 v. Thompson Farms Co., 642 F. 2d 1065, 1068 (CA7 1981); Atkins v. Scott, 597 F. 2d 872, 879 (CA4 1979); Braden v. University of Pittsburgh, 552 F. 2d 948, 950-951 (CA3 1977) (en banc); Cole v. Tuttle, 540 F. 2d 206, 207, n. 2 (CA5 1976); Hellerstein v. Mr. Steak, Inc., 531 F. 2d 470, 471-472 (CA10), cert. denied, 429 U. S. 823 (1976); Hanson v. Hunt Oil Co., 488 F. 2d 70, 72 (CA8 1973) (per curiam); Alabama Labor Council v. Alabama, 453 F. 2d 922, 923-925 (CA5 1972); Woods v. Baltimore & Ohio R. Co., 441 F. 2d 407, 408 (CA6 1971) (per curiam); see also Liberty Mutual Insurance Co. v. Wetzel, 424 U. S. 737, 745 (1976); cf. Browder v. Director, Illinois Department of Corrections, 434 U. S. 257 (1978). And, of" }, { "docid": "8393376", "title": "", "text": "Ins. Co. v. Levolor Lorentzen, Inc., 879 F.2d 1165, 1169 (3d Cir.1989). . Though Colkitt threatened to take an interlocutory appeal pursuant to 28 U.S.C. S 1292(b) in his response to the District Court’s December 7, 1999 Order, none of the parties now attempt to justify our jurisdiction under that provision. This is perhaps because an application for interlocutory appeal must be presented to this Court within ten days of the District Court's certification of the question of law. Braden v. University of Pittsburgh, 552 F.2d 948, 950-51 (3d Cir.1977) (en banc) (“It is well-settled that the neglect of a party to petition for leave to appeal within ten days of the entry of the certification order deprives an appellate court of jurisdiction to consider the petition, and that [Federal Rule of Appellate Procedure] 26(b) forbids appellate courts to enlarge the time for filing such a petition.” (citation omitted)). . While we will typically afford discretion to the District Court's determination that there is no just cause for delay, see Gerardi v. Pelullo, 16 F.3d 1363, 1368 (3d Cir.1994); Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 10, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980), we are presented here with what is solely a question of law entitled to plenary review — our interpretation of the requirements of Rule 54(b). See Griffiths v. CIGNA Corp., 988 F.2d 457, 462 (3d Cir.) (noting that though a motion for a new trial is ordinarily reviewed for an abuse of discretion, where the outcome of that motion relies on “legal precepts,” the court would engage in plenary review), cert. denied, 510 U.S. 865, 114 S.Ct. 186, 126 L.Ed.2d 145 (1993), overruled on other grounds, Miller v. CIGNA Corp., 47 F.3d 586 (3d Cir.1995). . The parties do not contest that the District Court ordered the entry of final judgment as to at least one or more, but less than all, claims or parties. See Waldorf v. Shuta, 142 F.3d 601, 611 (3d Cir.1998) (\"[a] final judgment is 'an ultimate disposition of an individual claim entered in the course of a multiple claims" }, { "docid": "22924789", "title": "", "text": "the 10 day period. That issue has been grappled with by few courts, all of them outside of this Circuit. Braden v. University of Pittsburgh, 552 F.2d 948 (3d Cir. 1977); In re La Providencia Development Corp., 515 F.2d 94 (1st Cir. 1975); Woods v. Baltimore & Ohio R.R. Co., 441 F.2d 407 (6th Cir. 1971); Borskey v. American Pad & Textile Co., 296 F.2d 894 (5th Cir. 1961); Nakhleh v. Chemical Construction Corp., 366 F.Supp. 1221 (S.D.N.Y.1973). None of these cases resolved the precise issue before this Court, and the only principle common to most of the above decisions is that a district court may not reenter a certification order to enlarge the time for appeal when the failure to timely appeal from the original certification order was due solely to mere neglect of counsel. E. g., Woods v. Baltimore & Ohio R.R. Co., 441 F.2d at 408. But see In re La Providencia Development Corp., 515 F.2d at 95. Nakhleh and Borskey stand for the proposition that reentry of an order of certification will be given effect only if accompanied by reconsideration of some new issue relating to the merits of the order sought to be appealed from. La Providencia, on the other hand, implicitly sanctions reentry of a certification order if it will afford the parties a timely appellate decision. The most flexible approach is apparently that endorsed by the Third Circuit in Braden where the court gave effect to the reentry of a certification order upon consideration of the facts surrounding reentry of the certification order and all pertinent rules. While the most salient fact upon which the Braden court relied was that no timely appeal from the original certification order was taken due to the district court’s failure to afford counsel timely notice of entry of the order, the Braden court also relied upon the fact that an appeal from the subsequently entered certification order had not caused the appellee any prejudice. Bra-den v. University of Pittsburgh, 552 F.2d at 954-55. The purpose underlying section 1292(b) does not appear to figure prominently in any of" }, { "docid": "8393375", "title": "", "text": "and claims or chooses to make an express determination that there is no just cause for delay of the appeal of the entry of summary judgment. We leave this determination in the capable hands of the District Court, “the one most likely to be familiar with the case and with any justifiable reasons for delay.” Bank of Lincolnwood v. Federal Leasing, Inc., 622 F.2d 944, 948 (7th Cir.1980) (citing Mackey, 351 U.S. at 437, 76 S.Ct. 895). # # # ;js For the reasons noted above, we dismiss this appeal for lack of jurisdiction and remand to the District Court for further proceedings. . The District Court properly took original jurisdiction of this matter pursuant to 28 U.S.C. § 1332(a), as there is complete diversity among the parties and the amount in controversy exceeds $75,000. . Even had Colkitt not reversed course and argued that our jurisdiction was lacking, we nevertheless would be required to examine, sua sponte, the basis for our jurisdiction. See Ortiz v. Dodge, 126 F.3d 545, 547 (3d Cir.1997); American Motorists Ins. Co. v. Levolor Lorentzen, Inc., 879 F.2d 1165, 1169 (3d Cir.1989). . Though Colkitt threatened to take an interlocutory appeal pursuant to 28 U.S.C. S 1292(b) in his response to the District Court’s December 7, 1999 Order, none of the parties now attempt to justify our jurisdiction under that provision. This is perhaps because an application for interlocutory appeal must be presented to this Court within ten days of the District Court's certification of the question of law. Braden v. University of Pittsburgh, 552 F.2d 948, 950-51 (3d Cir.1977) (en banc) (“It is well-settled that the neglect of a party to petition for leave to appeal within ten days of the entry of the certification order deprives an appellate court of jurisdiction to consider the petition, and that [Federal Rule of Appellate Procedure] 26(b) forbids appellate courts to enlarge the time for filing such a petition.” (citation omitted)). . While we will typically afford discretion to the District Court's determination that there is no just cause for delay, see Gerardi v. Pelullo, 16 F.3d" }, { "docid": "23065373", "title": "", "text": "other parties to the action in the district court. An order way be amended to include the prescribed statement at any time, and permission to appeal may be sought within 10 days after entry of the order as amended. Fed.R.App.P. 5(a) (emphasis added). The advisory committee notes to this Rule indicate that Rule 5(a) adopts the “theoretically and practically sound” view taken in Hadjipateras v. Pacifica, S.A., 290 F.2d 697 (5th Cir. 1961); Sperry Rand Corp. v. Bell Telephone Laboratories, Inc., 272 F.2d 29 (2d Cir. 1959) (en banc) and Houston Fearless Corp. v. Teter, 313 F.2d 91 (10th Cir. 1962). Rule 5(a) rejects the holding in Milbert v. Bison Laboratories, Inc., 260 F.2d 431 (3d Cir. 1958), that thé district court’s power to amend its order to include the prescribed certification statement is limited to the ten-day period after entry of the order during which time a motion to amend a judgment may be served pursuant to Fed.R. Civ.P. 59(e). See Notes of Advisory Committee on Appellate Rules, Rule 5, Fed.R.App.P. . The Third Circuit, sitting en banc, appears to have adopted this position in dictum in Braden v. University of Pittsburgh, 552 F.2d at 952, holding that the district court may reenter the certification order for the sole purpose of reviving the right to petition for appeal if the party seeking to appeal the order did not receive notice of its entry. See In re La Providencia Development Corp., 515 F.2d 94 (1st Cir. 1975) (apparently assuming that the district court may simply reenter the order containing the certification statement and thus trigger a new ten-day period to petition for permission to appeal). . Another possible jurisdictional basis is 28 U.S.C. § 1292(a)(3) which provides for appellate jurisdiction of “[ijnterlocutory decrees of .. . district courts ... determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed. ...” “The term ‘interlocutory decrees’ in section 1292(a)(3) is broadly interpreted.” Walter E. Heller and Co. v. O/S Sonny V., 595 F.2d 968, 971 (5th Cir. 1979). But see Treasure Salvors, Inc." } ]

[ { "docid": "4466346", "title": "", "text": "to make it more difficult for the party to find out what the case against him is about than it was under the old rules.” (30 F.R.D. 341). See Meese v. Eaton Mfg., 35 F.R.D. 162 (N.D.Ohio, 1964). Similar views are expressed in United States v. Purdome, 30 F.R.D. 338 (W.D. Mo., 1962) and Hartsfield v. Gulf Oil Corp., 29 F.R.D. 163, 165 (E.D.Pa. 1962). In the recent case of United States v. Renault, 27 F.R.D. 23, 25 (N.Y.1961) Judge Dimock held: “Rather than impose an inflexible rule against interrogatories calling for opinions, contentions or conclusions, it would be preferable to allow those interrogatories * * * if, on balance or convenience, answers to them would serve any substantial purpose, either in leading to evidence or in narrowing issues.” While Judge Dimock rejected the old rule he still pointed out that the particular interrogatory would have to be sufficiently necessary and reasonable. With respect to the specific interrogatory in question, the Court finds it is essential to Aluminium in its attempt to obtain a more particularized version of the Government’s allegation and should be allowed. The Government’s answer might be largely speculative about the future and would involve legal conclusions. This is only common sense for this is a Section 7 action wherein the complaint is inherently a prognosis about the likely effect of the merger measured against the standard of the anti-trust laws. The affidavits and briefs submitted by the plaintiff admittedly contain such detailed information about the industry. It is still reasonable to require a concise regrouping of that information as answers to this interrogatory so that Aluminium has a clear picture of the consequences on which the Government predicates each detriment to competition. The Government need not present every shred of its evidence here, any more than in answer to the interrogatories considered earlier. And in some instances reference to those answers will suffice. But such cross-reference is different from refusing to answer on the grounds that opinions are requested. As noted above the Court holds that the extent of the diminution complained of should not be" } ]

[ { "docid": "5301965", "title": "", "text": "which occurred at the Patent Office on which the defense of estoppel is based. The defendant having pleaded these defenses, it may be assumed that it is in a position to furnish the particulars. The objections to interrogatories 17, 18 and 19 are overruled. Interrogatories 15 and 29 Interrogatory 15 is based upon one of the defenses of invalidity and lack of invention. It calls for information as to the prior art. While to a degree the answer may require an expression of opinion essentially it relates to a fact matter. The further objection that the information requested is within the knowledge of the plaintiff is without merit. The objection is overruled. As to interrogatory 29, plaintiff seeks to have defendant characterize as true or false defendant’s statements or advertising with respect to its product. I find no basis for this interrogatory and the objection is sustained. Interrogatory 31 Here the defendant is requested to specify documentary material in its possession relating to the subject matter of the suit. Such identification may lead to the discovery of facts relevant to the subject matter of the controversy and so narrow the issues upon the trial. That plaintiff, as defendant suggests, may have knowledge of the information sought does not preclude the interrogatory. The objection is overruled. Settle order on notice. . RCA Mfg. Co., Inc. v. Decca Records, Inc., D.C., 1 F.R.D. 433, 436. . Cf. Anchor Hocking Glass Corp. v. White Cap Co., D.C., 47 F.Supp. 451, 453. . 4 Moore’s Federal Practice, 2nd Ed., § 33.17; Zenith Radio Corp. v. Dictograph Products Co., Inc., D.C., 6 F.R.D. 597; Carter Bros., Inc. v. Cannon, D.C., 2 F.R.D. 174; Anheuser-Busch, Inc. v. Dubois Brewing Co., D.C., 3 F.R.D. 336; Lyophile-Cryochem Corp. v. Pfize, D.C., 7 F.R.D. 362; Ball v. Paramount Pictures, Inc., D.C., 4 F.R.D. 194. . In patent infringement cases, the Courts generally do not require parties to make detailed comparisons. See, e. g., Builders Ornamental Iron Co. v. Merrill, D.C., 10 F.R.D. 616; Lanova Corp. v. National Supply Co., D.C., 29 F.Supp. 119. Nor do they often require parties" }, { "docid": "8226563", "title": "", "text": "interrogatory calls for an expression of opinion, but whether an answer would serve any substantial purpose. * * * If the answer might serve some legitimate purpose, either in leading to evidence or in narrowing the issues, and to require it would not unduly burden or prejudice the interrogated party, the court should require answer. The considerations in favor of allowing interrogatories as to the contentions of the parties are even stronger.” 4 Moore’s Federal Practice (2d ed.) pp. 2310-2311. Reflective of this philosophy is the ruling in DuPont v. Byrnes, 1 F.R.D. 34, 39 (D.C.S.D.N.Y., 1939) wherein the plaintiff was ordered to answer interrogatories as to what construction would be urged as to certain language in the patent in suit. The objections to interrogatories 27, 28, 29 and 30 will be overruled. Interrogatories 31 and 32 inquire of defendant’s work in the field which is the subject of the patent in suit prior to 1956. They are objected to on the basis of relevancy. Although this appears to be on the periphery of propriety for discovery, the Court will overrule the objections, except that production of documents as requested in 32 (b) will be denied. Interrogatory 33(b) calls for production of documents, and the objection thereto will be sustained. Interrogatory 34 inquires if plaintiff has offered any licenses under the subject patent or any other patent owned or controlled by plaintiff. The Court is unable to ascertain how this information is relevant to the issues now framed, or could lead to any relevant evidence. The objection will be sustained. Interrogatory 36, relating to any patent applications plaintiff may now have pending, is objected to as attempting to discover privileged material and as irrelevant. Defendant alleges that “this material can possibly have some bearing on the issues,” but does not state in what manner. The Court does not believe that evidence going to the question of other patents has been sufficiently shown to bear on this litigation to warrant requiring plaintiff to answer this interrogatory. Plaintiff’s objections to defendant’s interrogatories sustained as to items 2(b), 3, 4, 5, 6, 12," }, { "docid": "13952518", "title": "", "text": "L.Ed.2d 253 (1978). Therefore the questions are allowed, since they are not vague or overly broad, but are very specific questions requiring yes or no answers. Nor are they premature contentions since they are based on a hearing already held and request information about what plaintiff’s representatives did, information best provided by the plaintiff itself. Therefore, plaintiff must answer or state why it cannot answer after reasonable inquiry. See Milner v. National School of Health Technology, 73 F.R.D. 628, 632 (E.D.Pa.1977). In addition, plaintiff further objects in its Memorandum in Opposition that interrogatory nos. 30-33 are speculative. In particular, interrogatory nos. 32 and 33 ask for plaintiff’s legal contentions concerning the defendant’s potential involvement in the result of the AU labor dispute decision. Plaintiff cites Rodriguez v. Hrinda, 56 F.R.D. 11, 12, 16 F.R.Serv.2d 592, 594-95, and quotes Moore’s Federal Practice, ¶ 26.56[3], at 26-142 to 26-143, which states that “interrogatories may not ... request speculative opinions, since the opinion must relate to the facts in issue or to the application of law to fact.” 4 J. Moore, J. Lucas & G. Grotheer, Jr., Moore’s Federal Practice (2d ed. 1989). Plaintiff however neglects to regard Moore’s, supra, ¶ 33.17[1], which states that there is nothing in the rules that say only “facts” may be discovered. In fact, as quoted in Broadway & Ninety-Sixth St. Realty Co. v. Loew’s Inc., “it would be unfortunate if a rigid rule were applied” barring opinion answers to interrogatories, 21 F.R.D. 347, 359 (S.D.N.Y.1958). As the Advisory Committee Note reflects as to requests for opinions or contentions, if the answer might serve some legitimate purpose, either in leading to evidence or in narrowing the issues, without unduly prejudicing the interrogated party, the court should require an answer. See Diversified Products Corp. v. Sports Center Co., 42 F.R.D. 3 (D.Md.1967), Moore’s, supra, cited by the Advisory Committee. See also King v. E.F. Hutton & Co., 117 F.R.D. 2, 5 n. 3 (D.D.C.1987); Broadway, 21 F.R.D. at 359; Anderson v. United Air Lines, Inc., 49 F.R.D. 144, 148 (S.D.N.Y.1969). In the present case, the interrogatories should be" }, { "docid": "1104078", "title": "", "text": "are considered one by one, the answering party is required to incorporate the applicable “definitions” in each question. The definitions in this case, particularly (f) and (g) in the second paragraph quoted above, have so expanded the information requested that many of the interrogatories are unduly burdensome. B. Plaintiffs also contend that certain interrogatories are “objectionable for requiring a legal opinion”. An interrogatory is not objectionable merely because it involves an opinion, contention or legal conclusion. Efforts to draw clear lines between facts and opinions have been unsuccessful and the trend of the cases is to permit “factual” opinions. See Taylor v. Sound Steamship Lines, D.Conn., 100 F.Supp. 388 (1951); Bynum v. United States, E.D. La., 36 F.R.D. 14 (1964); Zinsky v. New York Central R.R., N.D.Ohio, 36 F.R.D. 680 (1960); 4 Moore’s Federal Practice, ¶ 33.17, 2d ed. (1966). Inquiries which in some measure call for legal conclusions can be useful in narrowing and sharpening the issues, which is a major purpose of discovery. In appropriate cases the Court may order that such interrogatories be answered at a later time, or after designated discovery has been completed, or at a pretrial conference. C. Defendants have added to each series of interrogatories the following statement: “The foregoing Interrogatories are to be deemed continuing, requiring supplemental answers if plaintiff * * * obtains further information applicable to any Interrogatories after answers are filed.” Unless otherwise ordered by the Court or by agreement of parties, a party who has responded to a request for discovery with an answer that was complete when made is under no duty to supplement his answer to include information thereafter acquired, except that he is under a duty seasonably to supplement his answer with respect to any question directly addressed to the identity and location of persons having knowldege of discoverable matters and the identity and stated subject matter of each person who will be called as an expert witness at trial. Supplemental interrogatories may be filed in order to bring up to date the answers to particular interrogatories, and the Court may make appropriate provisions with" }, { "docid": "8226562", "title": "", "text": "is the Court’s opinion that this procedure strikes a balance between the traditional view regarding discovery of construction of -patent claims and the rationale of the decisions hereinabove considered. Interrogatories 27, 28, 29 and 30 are likewise objected to as requiring an interpretation of the patent. These interrogatories differ from those just considered, in that they inquire whether plaintiff makes certain contentions with regard to the language and disclosures of the subject patent. It is the Court’s opinion that while it may be said that interpretation is here involved, it is only collaterally so, and the primary function of these interrogatories is elucidation. In considering .this problem, Professor Moore has observed: “The correct approach to the problem, it is submitted, requires the discarding of any dogmatic ideas that matters of opinion may never be called for by interrogatory. There is nothing in the language of the rules to require such a holding. * * * In passing upon objections to interrogatories the question before the court should not be whether, as a theoretical matter, the interrogatory calls for an expression of opinion, but whether an answer would serve any substantial purpose. * * * If the answer might serve some legitimate purpose, either in leading to evidence or in narrowing the issues, and to require it would not unduly burden or prejudice the interrogated party, the court should require answer. The considerations in favor of allowing interrogatories as to the contentions of the parties are even stronger.” 4 Moore’s Federal Practice (2d ed.) pp. 2310-2311. Reflective of this philosophy is the ruling in DuPont v. Byrnes, 1 F.R.D. 34, 39 (D.C.S.D.N.Y., 1939) wherein the plaintiff was ordered to answer interrogatories as to what construction would be urged as to certain language in the patent in suit. The objections to interrogatories 27, 28, 29 and 30 will be overruled. Interrogatories 31 and 32 inquire of defendant’s work in the field which is the subject of the patent in suit prior to 1956. They are objected to on the basis of relevancy. Although this appears to be on the periphery of propriety" }, { "docid": "21948077", "title": "", "text": "requiring it to exercise its discretion and judgment in determining what it is called on to answer. The requirement of definiteness is satisfied so long as it is clear what it is the interrogated party is called on to answer. The inquiries need not be phrased in terms of technical precision. 4 Moore, Federal Practice, para. 33.08(1) (1966). The court finds that the interrogatories under consideration are not unduly vague and the objection based on this ground will be overruled. The defendant, however, will be permitted to qualify or restrict its answer as may be necessary because of any uncertainty. Liquidometer Corp. v. Capital Airlines, Inc., 24 F.R.D. 319, 325 (D.Del.1959). D. Interrogatories 15 and 16 inquire about patent applications filed by the defendant anywhere in the world relating to the freeze concentration of coffee. An objection is lodged against these interrogatories on the basis that such information is privileged and that the interrogatories are not reasonably calculated to lead to relevant evidence. The rule is settled that while patent applications are not privileged per se, their disclosure will be compelled only where there is some connection between the applications and the subject matter of the pending litigation. James B. Clow & Sons, Inc. v. United States Pipe and Foundry Co., 313 F.2d 46, 51 (5 CA 1963); Meese v. Eaton Mfg. Co., 35 F.R.D. 162, 165 (N.D.Ohio 1964). In the opinion of the court, the requisite connection has not been shown to exist and the defendant’s objection will therefore be sustained. With regard to that section of interrogatory 16 wherein the plaintiff inquires about issued patents, the court must emphasize that the word patent, in its broader sense, means public. The plaintiff may make its own search in the public office of registry, a source equally available to all. Camco, Inc. v. Baker Oil Tools, Inc., 45 F.R.D. 384 (S.D.Tex. 1968). E. Interrogatories 35 and 36 deal with the date and other particulars related to defendant’s first experimentation with the process involved in this action. Defendant contends that it should not be compelled to divulge this information until the" }, { "docid": "18571564", "title": "", "text": "and such other relief as justice may require. Defendant, in turn, denies the allegations of invalidity, asserts that plaintiff’s products do, in fact, infringe upon the subject patents, and counterclaims for a declaratory judgment supporting its contentions, an injunction restraining further infringement, an accounting and treble damages, and costs and reasonable attorneys’ fees. The first sets of interrogatories were served in March, 1966, and both parties submitted their answers in May of the same year. In September, 1967, however, plaintiff served its second set of interrogatories, Nos. 57 to 77(b) inclusive. Defendant has since answered interrogatories Nos. 73 to 77(b) inclusive, but objects to the remaining queries on the grounds that they seek the opinion of a patent law expert and require a comparison of defendant’s patent with prior art. Although the traditional view has been that interrogatories which call for opinions, conclusions or contentions are improper, see, e. g., Textrol, Inc. v. D. C. Oviatt Co., 37 F.R.D. 27 (N.D. Ohio 1964); Nakken Patents Corp. v. Rabinowitz, 1 F.R.D. 90 (E.D.N.Y.1940), there is a noticeable trend toward permitting such interrogatories if the court is convinced that by requiring responses thereto the lawsuits could be expedited, the information obtained could lead to relevant evidence, the issues could be narrowed, unnecessary testimony and wasteful preparation could be avoided, or any other substantial purpose sanctioned by the discovery provisions of the Federal Rules could be served. See: Microtron Corp. v. Minnesota Mining & Mfg. Co., 269 F.Supp. 22 (D.N.J.1967); Diversified Products Corp. v. Sports Center Co., Inc., 42 F.R.D. 3 (D.Md.1967); Luey v. Sterling Drug, Inc., 240 F.Supp. 632, 636 (W.D.Mich.1965); Meese v. Eaton Mfg. Co., 35 F.R.D. 162, 165-166 (N.D. Ohio 1964); Railex Corp. v. Cleaners Sales & Equipment Corp., 7 Fed.Rules Serv.2d 33.319, Case 2 (E.D.N.Y.1963); United States v. Renault, Inc., 27 F.R.D. 23, 29 (S.D.N.Y.1960); United States v. Nysco Laboratories, Inc., 26 F.R.D. 159, 162 (E.D.N.Y.1960); Gagen v. Northam Warren Corp., 15 F.R.D. 44, 46 (S.D.N.Y. 1953). Thus, courts have overruled objections to interrogatories seeking definitions of terms, more detail regarding an alleged infringement, legal and factual conclusions, and" }, { "docid": "8226561", "title": "", "text": "Gagen v. Northam Warren Corp., 15 F.R.D. 44 (D.C.S.D.N.Y., 1953), the Court observed: “It may be acknowledged that to a degree the interrogatories in question call for expression of judgment or opinion. However, this in an'd of itself does not condemn them if the basic purposes of deposition-discovery procedure-—obtaining relevant information and narrowing the issues—are to be served. In determining whether the interrogatories serve such purposes, account will be taken of the burden placed upon the party answering.” The Court is of the opinion that in this action, where the complaint is clearly a notice pleading only, plaintiff should answer interrogatories 16, 17, 18, 19, 20, 21, 22 and 24, to the extent of stating whether the described devices would be considered an infringement of the subject patent and what claim or claims thereof. Plaintiff’s objections will be sustained as to that portion of the interrogatories which inquire in what respect the devices described would be considered infringements, as those answers would require a detailed technical comparison of the patent and the described devices. It is the Court’s opinion that this procedure strikes a balance between the traditional view regarding discovery of construction of -patent claims and the rationale of the decisions hereinabove considered. Interrogatories 27, 28, 29 and 30 are likewise objected to as requiring an interpretation of the patent. These interrogatories differ from those just considered, in that they inquire whether plaintiff makes certain contentions with regard to the language and disclosures of the subject patent. It is the Court’s opinion that while it may be said that interpretation is here involved, it is only collaterally so, and the primary function of these interrogatories is elucidation. In considering .this problem, Professor Moore has observed: “The correct approach to the problem, it is submitted, requires the discarding of any dogmatic ideas that matters of opinion may never be called for by interrogatory. There is nothing in the language of the rules to require such a holding. * * * In passing upon objections to interrogatories the question before the court should not be whether, as a theoretical matter, the" }, { "docid": "8303036", "title": "", "text": "information to prove its charges, the rule clearly is that a party may not be required by interrogatories to submit every item of evidence he expects to produce on trial of the case. E. g., Ritepoint Co. v. Secretary Pen Co., Inc., D.C.N.J., 94 F.Supp. 457; United States v. Owens Illinois Glass Co., D.C.N.D.Ohio, 25 Fed. Rules Serv. 33.1, Case 1; United States v. General Motors Corp., D.C.N.D.Ill., 2 F.R.D. 528; 4 Moore, Federal Practice par. 26.19, at page 1081. When properly used, disclosure is a valuable aid in narrowing and clarifying issues as well as in discovering evidence and leads to evidence, but to permit a type of disclosure which elicits every minute detail of evidence would result in extreme hardship and confusion. This would be particularly true in antitrust actions, where the issues subject to proof are often broad and manifold. The proceedings would be long delayed pending the arduous preparation of answers which would make up a complete trial record before the actual trial had even begun. The interrogated party would work at great peril in compiling his huge volume of answers, for omission of any item of evidence, through innocent oversight or otherwise, would subject him to the possible risk of exclusion of the omitted evidence at trial. Listing certain evidence in the answers as bearing only on one allegation might preclude its introduction at trial in connection with other allegations. Even after furnishing answers, the interrogated party would need to be continually on guard to supplement his answers with every shred of new evidence garnered. Obviously, then, discovery must be kept within bounds to assure that interrogating parties do not employ practices which would defeat the public interest in the orderly and expeditious administration of justice. Plaintiff’s objections to the interrogatories listed below are sustained. Objection is overruled, however, as to those interrogatories which require plaintiff to identify and indicate the present whereabouts of all documents it intends to rely upon to prove the allegations in the complaint. Answers to these interrogatories should serve a valuable function in narrowing the issues and in enabling defendants" }, { "docid": "18571566", "title": "", "text": "expert opinions. On the other hand, the courts have not hesitated to sustain objections to burdensome or unreasonable inquiries. See, e. g., Railex Corp. v. Cleaners Sales & Equipment Corp., supra; Gagen v. Northam Warren Corp., supra. The interrogatories at issue upon this motion attempt to have defendant declare whether certain elements of the latter’s patent No. 2,917,590, or their equivalents, are illustrated in the Aust patent, U.S. Patent No. 2,535,479, which is one of the patents plaintiff has submitted as prior art. Since these interrogatories are obviously designed to limit or more precisely define matter relevant to the issue of validity, the court is convinced that they are proper. Defendant has not been requested to compare one of its patents with those of many others, and it appears that its president is the named inventor, and that at least one other corporate officer is familiar with the controversy. Therefore, objections to interrogatories Nos. 57 to 72 inclusive are overruled and defendant is directed to answer; and it is So ordered. . 28 U.S.C. § 1338(a) (1964). . The rationale most often offered in support of this view is the conclusory statement that discovery under the Federal Rules is only intended for the ascertainment of facts. See, 4 J. Moore, Fed.Prae. ¶33.17 at 2350 (2d ed. 1967). . See also, 4 X Moore, Fed.Prac. ¶33.17 at 2354 (2d ed. 1987) : In passing upon objections to interrogatories the question before the court should not be whether, as a theoretical matter, the interrogatory cal’s for an expression of opinion, but whether an answer would serve any substantial purpose. . See, e. g., Diversified Products Corp. v. Sports Center Co., Inc., supra. . See, e. g., Railex Corp. v. Cleaners Sales & Equipment Corp., supra. . See, e. g., Microtron Corp. v. Minnesota Mining & Mfg. Co., supra; Luey v. Sterling Drug, Inc., supra. . “An interrogatory is not objectionable because it calls for an expert opinion, especially where the expert is * * * in the regular employ of the defendant.” Kendall v. United Air Lines, Inc., 9 F.R.D. 702, 703" }, { "docid": "5031905", "title": "", "text": "Co., 18 F.R. D. 313 (D.Minn.1955); Drake v. Pycope, Inc., 96 F.Supp. 331 (N.D.Ohio 1951). An inventor may be called upon to describe precise similarities between competing devices. In Meese v. Eaton Manufacturing Co., 35 F.R.D. 162 (N.D.Ohio 1964), the court commented upon this discovery right by saying that it could think “of no one more qualified than the inventors to express [an] opinion as to what constitutes theft of their inventiveness.” Id. at 166. See also Montecatini Edison, SpA v. Rexall Drug & Chemical Co., 288 F.Supp. 486 (D.Del.1968). And particularity in answers is especially required where the defendant pleads the invalidity of plaintiff's patent, either by challenging the breadth of the patent or by asserting prior art and public use. Liquidometer Corp. v. Capital Airlines, Inc., 24 F.R.D. 319 (D.Del.1959); Gellman v. Friedman, 143 F.Supp. 383 (S.D.N.Y.1956); International Nickel Co., Inc. v. Ford Motor Co., 15 F.R.D. 392 (S.D.N.Y.1954); Gagen v. Northam Warren Corp., 15 F.R.D. 44 (S.D.N.Y.1953); Martin-Parry Corp. v. C. A. Bader Co., 16 F.R.D. 465 (D.Conn. 1953). Questions asking a party to compare his patented process with that represented by a drawing presented by his opponent have likewise been held proper. Schwartz v. Howard Hosiery Co., 27 F.Supp. 443 (E.D.Pa.1939). While these decisions relate to the taking of interrogatories under Rule 33, Fed.Rules Civ.Proc., in patent infringe ment cases begun in federal district court, I see no difference in the application of the rationale to discovery by deposition under Rule 30 in ancillary proceedings pursuant to 35 U.S.C. § 24 in interference proceedings. Before the issue of infringement or interference can be reached, we must first determine the claims of the parties. Mr. Gorzegno may feel, quite properly, perhaps, that his engineering specifications were inexactly translated into the various counts submitted to the Patent Office by the Foster Wheeler legal staff. However so, this intracorporate misunderstanding should not obfuscate the contest between Foster Wheeler and Babcock & Wilcox. Gorzegno is able to understand the extent of the invention asserted' by the Foster Wheeler claim. He may properly be questioned as to his role as a" }, { "docid": "18571567", "title": "", "text": "1338(a) (1964). . The rationale most often offered in support of this view is the conclusory statement that discovery under the Federal Rules is only intended for the ascertainment of facts. See, 4 J. Moore, Fed.Prae. ¶33.17 at 2350 (2d ed. 1967). . See also, 4 X Moore, Fed.Prac. ¶33.17 at 2354 (2d ed. 1987) : In passing upon objections to interrogatories the question before the court should not be whether, as a theoretical matter, the interrogatory cal’s for an expression of opinion, but whether an answer would serve any substantial purpose. . See, e. g., Diversified Products Corp. v. Sports Center Co., Inc., supra. . See, e. g., Railex Corp. v. Cleaners Sales & Equipment Corp., supra. . See, e. g., Microtron Corp. v. Minnesota Mining & Mfg. Co., supra; Luey v. Sterling Drug, Inc., supra. . “An interrogatory is not objectionable because it calls for an expert opinion, especially where the expert is * * * in the regular employ of the defendant.” Kendall v. United Air Lines, Inc., 9 F.R.D. 702, 703 (S.D.N.Y.1949). See also, Moese v. Eaton Mfg. Co., supra; Gagen v. Northam Warren Corp., supra. . Cf. Gagen v. Northam Warren Corp., supra. . In a patent case, no one is more qualified to express an expert opinion than the inventor. See, Moese v. Eaton Mfg. Co., supra, 35 F.R.D. at 166." }, { "docid": "18571565", "title": "", "text": "noticeable trend toward permitting such interrogatories if the court is convinced that by requiring responses thereto the lawsuits could be expedited, the information obtained could lead to relevant evidence, the issues could be narrowed, unnecessary testimony and wasteful preparation could be avoided, or any other substantial purpose sanctioned by the discovery provisions of the Federal Rules could be served. See: Microtron Corp. v. Minnesota Mining & Mfg. Co., 269 F.Supp. 22 (D.N.J.1967); Diversified Products Corp. v. Sports Center Co., Inc., 42 F.R.D. 3 (D.Md.1967); Luey v. Sterling Drug, Inc., 240 F.Supp. 632, 636 (W.D.Mich.1965); Meese v. Eaton Mfg. Co., 35 F.R.D. 162, 165-166 (N.D. Ohio 1964); Railex Corp. v. Cleaners Sales & Equipment Corp., 7 Fed.Rules Serv.2d 33.319, Case 2 (E.D.N.Y.1963); United States v. Renault, Inc., 27 F.R.D. 23, 29 (S.D.N.Y.1960); United States v. Nysco Laboratories, Inc., 26 F.R.D. 159, 162 (E.D.N.Y.1960); Gagen v. Northam Warren Corp., 15 F.R.D. 44, 46 (S.D.N.Y. 1953). Thus, courts have overruled objections to interrogatories seeking definitions of terms, more detail regarding an alleged infringement, legal and factual conclusions, and expert opinions. On the other hand, the courts have not hesitated to sustain objections to burdensome or unreasonable inquiries. See, e. g., Railex Corp. v. Cleaners Sales & Equipment Corp., supra; Gagen v. Northam Warren Corp., supra. The interrogatories at issue upon this motion attempt to have defendant declare whether certain elements of the latter’s patent No. 2,917,590, or their equivalents, are illustrated in the Aust patent, U.S. Patent No. 2,535,479, which is one of the patents plaintiff has submitted as prior art. Since these interrogatories are obviously designed to limit or more precisely define matter relevant to the issue of validity, the court is convinced that they are proper. Defendant has not been requested to compare one of its patents with those of many others, and it appears that its president is the named inventor, and that at least one other corporate officer is familiar with the controversy. Therefore, objections to interrogatories Nos. 57 to 72 inclusive are overruled and defendant is directed to answer; and it is So ordered. . 28 U.S.C. §" }, { "docid": "8302556", "title": "", "text": "Federal Rules, interrogatories were restricted to facts, and no opinions could be demanded. Hoak v. Empire Steel Corporation, 5 F.R.D. 330 (N.D.Ohio 1946). After some experience with this restriction, Courts have gradually discarded it. The better view permits interrogatories addressed to matters of opinion when an answer would serve a substantial purpose in expediting-the lawsuit. * * * Therefore,. Interrogatories 17 through 23, which call for the opinions of the plaintiffs concerning their patent, are not objectionable; the full explanation of the patent in suit might clarify the issues in this case.” See also 4 Moore’s Federal Practice, 2nd Ed., pages 2310-2312. In view of the trend in this District- and of the fact that answers to interrogatory 91 may narrow the issues, defendant’s objections will be overruled. The objections to interrogatories 92, 93 and 94 will be overruled. Interrogatory 95 is as follows: “State whether defendant asserts that there are any claims of U. S. patent 3,025,929 that include any term or terms that do not apply to the basic Farval-Tanway system referred to on page 4 of Exhibit A attached to defendant’s requests for admissions served on plaintiff May 17, 1963, and name each such asserted claim, if any.” Plaintiff has cited Meese, supra, in which the following statement was made (p. 166): “Interrogatories 24 through 42 are directed to the contentions of the plaintiffs, and their objections are not well taken. The plaintiffs object that these questions call for conclusions and opinions of law, which parties are not required to express. United States v. Selby, 25 F.R.D. 12 (N.D. Ohio 1960). The interrogatories objected -to each inquire whether a part of defendant’s product infringes upon plaintiff’s patented product; quite obviously this calls for an opinion involving a point of law. The prohibition against interrogatories requesting a legal opinion is rooted, though, in the fact that parties generally are unable to answer or express such an opinion. '\"The assertion and discussion of legal theories, and the classification of facts in support thereof, should be by the lawyers.’ United States v. Selby, 25 F.R.D. 12, 14. In patent cases," }, { "docid": "13952519", "title": "", "text": "4 J. Moore, J. Lucas & G. Grotheer, Jr., Moore’s Federal Practice (2d ed. 1989). Plaintiff however neglects to regard Moore’s, supra, ¶ 33.17[1], which states that there is nothing in the rules that say only “facts” may be discovered. In fact, as quoted in Broadway & Ninety-Sixth St. Realty Co. v. Loew’s Inc., “it would be unfortunate if a rigid rule were applied” barring opinion answers to interrogatories, 21 F.R.D. 347, 359 (S.D.N.Y.1958). As the Advisory Committee Note reflects as to requests for opinions or contentions, if the answer might serve some legitimate purpose, either in leading to evidence or in narrowing the issues, without unduly prejudicing the interrogated party, the court should require an answer. See Diversified Products Corp. v. Sports Center Co., 42 F.R.D. 3 (D.Md.1967), Moore’s, supra, cited by the Advisory Committee. See also King v. E.F. Hutton & Co., 117 F.R.D. 2, 5 n. 3 (D.D.C.1987); Broadway, 21 F.R.D. at 359; Anderson v. United Air Lines, Inc., 49 F.R.D. 144, 148 (S.D.N.Y.1969). In the present case, the interrogatories should be answered, although they are narrowly relevant, since they may further illuminate on plaintiff’s relationship with defendant regarding the Unfair Labor Practice trial. Such an answer would seem to require no great expense to the plaintiff, nor impose any undue burden upon it. See Wilmington Country Club v. Horwath & Horwath, 46 F.R.D. 65, 67 (E.D.Pa.1969). Therefore, plaintiff should answer or if plaintiff has in good faith formed no definite opinion about the matter and cannot form such an opinion save for unwarranted speculation, it must state this \"for the record. See Id. INTERROGATORY NUMBERS 20-21 In interrogatories nos. 20-21, defendant asks plaintiff to detail and define the “outrageous acts” and “unreasonable risk of possible unfair labor practice liability” referred to in the complaint. Plaintiff simply refers defendant to its complaint. As defendant argues, merely restating the general allegations in the complaint is not a proper answer to an interrogatory. See United States v. West Virginia Pulp and Paper Co., 36 F.R.D. 250, 251 (S.D.N.Y.1964). However, plaintiff does not even restate the allegations of the complaint." }, { "docid": "21948395", "title": "", "text": "the interrogatories seek factual responses or opinions, conclusions, comparisons and contentions? The interrogatories ask the plaintiffs to apply the claim language to a prior structure and di’awing from which it was allegedly made; they ask the plaintiffs what a person skilled in the art would do in certain situations; and they ask the plaintiffs to state the differences between the drawing, exhibit 208, and the structure, exhibit 272. All of these questions require more than a simple factual statement in answer. They require not only a construction of the claims in suit as applied to a prior device, but they also require contentions and opinions. However, the mere fact that an interrogatory seeks ■opinions as opposed to facts does not make it improper per se. An opinion may be inquired into if the answer would .serve some substantial purpose. 4 Moore, Federal Practice, § 33.17, pp. 2354-55 (2nd ed.). See also Meese v. Eaton Manufacturing Company, 35 F.R.D. 162 (N.D.Ohio 1964). Therefore, the crucial •question to be resolved is whether answers to the present set of interrogatories would serve some substantial purpose. There are many cases which discuss the purposes of discovery. One of the purposes is to narrow the controversy to the real points of dispute. The defendants desire to obtain a more precise statement from the plaintiffs concerning the subject matter before the court. The plaintiffs, on the other hand, argue that the defendants have all the information before them; they urge that the defendants not only know the claims, but that they have the exhibits and the burden of proof. Rule 33 states that interrogatories can relate to any matters which can be inquired into under rule 26 (b). The latter expressly allows for inquiry which relates to the claim or defense of the examining party. The factor which is especially significant in answering the substantial purpose test in the case at bar is that the ■defendants appear to have all the information they need to obtain what they are .seeking from the plaintiffs. They know the plaintiffs’ claims; in fact, plaintiffs’ answer to defendants’ interrogatory 30" }, { "docid": "21948076", "title": "", "text": "and interrogatory 10 is directed toward obtaining the names and addresses of defendant’s officers and directors. The objection to interrogatory 9(d) will be sustained. The defendant engages in advertising on a massive scale. The interrogatory would necessarily involve an enormous number of documents. Under the circumstances, the court is of the opinion that the value of the material is far outweighed by the effort that would be required to accumulate such a mass of information. The fact that the advertising material is public information serves to tip the scales even further against the plaintiff on this point. See 4 Moore, Federal Practice, para. 33.20 (1966). The objection to interrogatory 10- will be sustained in part. The defendant should supply the names and addresses of only those officers and directors who have knowledge of the de-waxing step in the process. (See supra pp. 2-3.) C. Interrogatories 26-29, which have been discussed in Section “I-A” of this memorandum, are also challenged on the grounds that they are not specific enough to be answered by the defendant without requiring it to exercise its discretion and judgment in determining what it is called on to answer. The requirement of definiteness is satisfied so long as it is clear what it is the interrogated party is called on to answer. The inquiries need not be phrased in terms of technical precision. 4 Moore, Federal Practice, para. 33.08(1) (1966). The court finds that the interrogatories under consideration are not unduly vague and the objection based on this ground will be overruled. The defendant, however, will be permitted to qualify or restrict its answer as may be necessary because of any uncertainty. Liquidometer Corp. v. Capital Airlines, Inc., 24 F.R.D. 319, 325 (D.Del.1959). D. Interrogatories 15 and 16 inquire about patent applications filed by the defendant anywhere in the world relating to the freeze concentration of coffee. An objection is lodged against these interrogatories on the basis that such information is privileged and that the interrogatories are not reasonably calculated to lead to relevant evidence. The rule is settled that while patent applications are not privileged per" }, { "docid": "8302555", "title": "", "text": "require a comparison of the patent claims with the accused device and this would involve comparisons and implicitly the expression of opinions. Plaintiff submits authorities holding that a party should not be required to construe patent claims, make detailed comparisons of devices involved in patent litigation, or give opinions concerning them. Hoak v. Empire Steel Co. * * * “The significant observations of Professor Moore on this subject are highly persuasive of the desirability of allowing interrogatories such as those mentioned above. Among other things he says: ‘ * * * [Quoting from 4 Moore’s Federal Practice, 2nd Ed., pages 2311-12.]’ “The above reasons stated by Professor Moore are applicable here.” Chief Judge Connell of this District stated in Meese v. Eaton Mfg. Co., D.C., 35 F.R.D. 162, 165-166 (1964): “Interrogatories 17 through 42 are objected to on the ground that they seek to elicit opinions and contentions of the plaintiffs; they claim that Rule 33 requires that parties disclose only matters of fact. This is no longer true. In the early days of the Federal Rules, interrogatories were restricted to facts, and no opinions could be demanded. Hoak v. Empire Steel Corporation, 5 F.R.D. 330 (N.D.Ohio 1946). After some experience with this restriction, Courts have gradually discarded it. The better view permits interrogatories addressed to matters of opinion when an answer would serve a substantial purpose in expediting-the lawsuit. * * * Therefore,. Interrogatories 17 through 23, which call for the opinions of the plaintiffs concerning their patent, are not objectionable; the full explanation of the patent in suit might clarify the issues in this case.” See also 4 Moore’s Federal Practice, 2nd Ed., pages 2310-2312. In view of the trend in this District- and of the fact that answers to interrogatory 91 may narrow the issues, defendant’s objections will be overruled. The objections to interrogatories 92, 93 and 94 will be overruled. Interrogatory 95 is as follows: “State whether defendant asserts that there are any claims of U. S. patent 3,025,929 that include any term or terms that do not apply to the basic Farval-Tanway system referred to" }, { "docid": "8226560", "title": "", "text": "notice that he is being sued, and little else. Some procedure should be made available by which defendant may obtain information necessary to defend properly the lawsuit. Two methods are open to defendant, a motion for more definite statement or the discovery procedure. This court has many times in the past indicated that the proper method is the use of the discovery procedures, and cannot allow discovery by interrogatories to become entangled in a mass of objections, else the defendant will be wholly unable to obtain the necessary information. This is especially true where plaintiff does nothing more in his complaint than give notice of the lawsuit. Objections going to opinion or interpretation of claims therefore must be brushed aside where, as here, the interrogatories are directed to discovery of the exact nature of plaintiff’s claim.” Similarly, in Harvey v. Levine, 25 F.R.D. 15 (D.C.N.D.Ohio, 1960), answer was required to an interrogatory which inquired if a device not alleged to be an infringement would be considered by plaintiff to infringe the patent in suit. In Gagen v. Northam Warren Corp., 15 F.R.D. 44 (D.C.S.D.N.Y., 1953), the Court observed: “It may be acknowledged that to a degree the interrogatories in question call for expression of judgment or opinion. However, this in an'd of itself does not condemn them if the basic purposes of deposition-discovery procedure-—obtaining relevant information and narrowing the issues—are to be served. In determining whether the interrogatories serve such purposes, account will be taken of the burden placed upon the party answering.” The Court is of the opinion that in this action, where the complaint is clearly a notice pleading only, plaintiff should answer interrogatories 16, 17, 18, 19, 20, 21, 22 and 24, to the extent of stating whether the described devices would be considered an infringement of the subject patent and what claim or claims thereof. Plaintiff’s objections will be sustained as to that portion of the interrogatories which inquire in what respect the devices described would be considered infringements, as those answers would require a detailed technical comparison of the patent and the described devices. It" }, { "docid": "15226968", "title": "", "text": "jeetions on the ground of vagueness are denied. General objections on the ground that the information sought is a matter of public record and that “opinions, conclusions and contentions” are called for are without merit. Blau v. Lamb, D.C.S.D.N.Y., 20 F.R.D. 411, 415; Gagen v. Northam Warren Corp., D.C. S.D.N.Y., 15 F.R.D. 44, 46. The interrogatories as amended are not overly burdensome or oppressive as defendants contend. Much of the information will undoubtedly be available because defendants will need it in the preparation of their defense. In light of the liberal interpretation that must be given to the rules of discovery procedure and the wide scope of possible issues in the case the interrogatories are not subject to the general objection that they are burdensome and oppressive. See e. g. Caldwell-Clements, Inc., v. McGraw-Hill Publishing Co., D.C.S.D.N.Y., 12 F.R.D. 531. This leaves the specific objections of defendants which I proceed to discuss. Defendants first object to a definition at the beginning of the interrogatories stating that: “Reference herein or in these interrogatories to any defendant or to ‘you’ or ‘your’ is intended to include each defendant referred to, its subsidiaries and corporations controlled by it and the predecessors in name of such defendant or such subsidiaries or controlled corporations; and corporations consolidated or merged with such defendant or with any such subsidiaries, controlled corporations or predecessors in name, and subsidiaries of or corporations controlled by such merged or consolidated corporations.” Defendants contend that because of this statement the interrogatories are in effect addressed to persons who are not parties, contrary to Rule 33. I do not so construe it; it merely requires defendants to supply information which may be known to other corporations yet available to defendants. Rule 33 provides : “Any party may serve upon any adverse party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer or agent, who shall furnish such information as is available to the party.” If subsidiaries or controlled corporations possess the desired information and" } ]

[ { "docid": "22659029", "title": "", "text": "waste, and authorized the appointment of a receiver of the premises sold. Otherwise the extension of the period for redemption was unconditional, and in case a receiver was appointed, the income during the period allowed for redemption, except what was necessary for repairs and to prevent waste, was still to go to the mortgagor. None of these cases, and we have cited those upon which appellant chiefly relies, is directly applicable to the question now before us in view of the conditions with which the Minnesota statute seeks to safeguard the interests of the mortgagee-purchaser during the extended period. ' And broad expressions contained in some of these opinions went beyond the requirements of the decision, and are not controlling. Cohens v. Virginia, 6 Wheat. 264, 399. Not only is the constitutional provision qualified by the measure of control which the State retains over remedial processes, but the State also continues to possess authority to safeguard the vital interests of its people. It does not matter that legislation appropriate to that end “ has the result of modifying or abrogating contracts already in effect.” Stephenson v. Binford, 287 U.S. 251, 276. Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign, power is also read into contracts as a postulate of the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government by virtue of which contractual relations are worth-while,;—a government which retains adequate authority to secure the peace and good order of society. This principle of harmonizing the constitutional prohibition with the necessary residuum of state power has had progressive - recognition in the decisions of this Court. While the charters of private corporations constitute contracts* a grant of exclusive privilege is. not to be implied as against the State. Charles River Bridge v. Warren Bridge, 11 Pet. 420. And all contracts are subject to the right of eminent domain. West River Bridge v. Dix, 6 How. 507. The reservation of this necessary authority of the State is deemed" } ]

[ { "docid": "22393199", "title": "", "text": "§ 4 of the Act of August 28, 1935, subsection (n) was changed to comport with subsection 75 (s), permitting a petitioner to amend and ask “to be adjudged a bankrupt.” We are of the. opinion that it is the date of filing this request for adjudication as bankrupt which fixes “the line of cleavage” as to the property. This conclusion is really in conformity with the reasoning governing the rule in the General Bankruptcy Act. There the first petition seeks an adjudication in bankruptcy. Under § 75, it is only the later amendment which does. As the 120 acres had been reconveyed to the petitioner prior to his filing of the petition of October 11, 1935, seeking adjudication as a bankrupt, his interest in the 120 acres was subject to bankruptcy jurisdiction. As the land was reconveyed to the petitioner prior to the decree of foreclosure, petitioner was an owner entitled to redeem after the sale. Ind. Stat. Ann. (Bums, 1933) c. 40. The amendment of October 11, 1935, was the first opportunity to bring the 120 acres into the jurisdiction of the Bankruptcy Court, and we think it had that effect. Second. The conclusion that all the lands in controversy, except the 80.31-acre tract, are.within the jurisdiction of the Bankruptcy Court under the petitioner’s amendment asking to be adjudged a bankrupt and are lands subject to petitioner’s right of redemption, as extended by subsection (n) of § 75, requires the reversal of the judgments below, as to these lands, unless the provisions of § 75 (n), extending the period of redemption, are unconstitutional. Respondent insists that these provisions are a direct invasion of the State’s rights under the Tenth Amendment and violative of the respondent’s own rights, by virtue of its title acquired by purchase at the judicial sale, in contravention of the Fifth Amendment. The right of the Congress to legislate on the subject of bankruptcies is granted by the Constitution in general terms. “The Congress shall have power ... To establish . . . uniform laws on the subject of Bankruptcies throughout the United States,” Article" }, { "docid": "23189521", "title": "", "text": "Mr. Chief Justice Stone delivered the opinion of the Court. After her petition for a composition or extension of her debts in a farmer-debtor proceeding under § 75 of the Bankruptcy Act, 11 IT. S. C. § 203, had been dismissed, petitioner applied to reopen the proceeding or, in the alternative, to be permitted to institute a new proceeding under § 75. The questions for our decision are whether the courts below erred in denying her application and whether, at the time of her application, her right as mortgagor to redeem Alabama real estate after its sale on foreclosure of the mortgage was such that it can be administered by the court in a § 75 proceeding. In 1937, after respondent mortgagee had obtained a decree of foreclosure, but before foreclosure sale, petitioner filed a petition under § 75 seeking a composition or extension of her debts. The bankruptcy court referred the proceeding to a conciliation commissioner; petitioner filed proposed terms of composition or extension to which respondent filed objections; the conciliation commissioner then recommended that the offer be not approved, on the ground that it did not contain an equitable and feasible method of liquidating respondent’s claim and of securing petitioner’s financial rehabilitation. The court confirmed the report of the conciliation commissioner, holding that petitioner was not entitled to amend her petition so as to proceed under § 75 (s), and directed that the proceeding be dismissed as of January 19, 1938. Petitioner’s motion for leave to appeal to the Circuit Court of Appeals in forma pauperis and her petition for certiorari to this Court were denied. 95 F. 2d 252; 305 U. S. 596. After the farmer-debtor proceeding was dismissed respondent purchased the mortgaged property at a foreclosure sale, which was confirmed in April, 1938. Nearly a year later, respondent contracted to sell the property to a third party, the contract stipulating that it was “subject to the statutory right of redemption following foreclosure if any exists.” Alabama law allows to the mortgagor a two-year redemption period after foreclosure sale. Title 7, § 727, Code of Alabama, 1940." }, { "docid": "1170410", "title": "", "text": "to the reasonable investment-backed expectations of lessors, it should be noted that section 70b of the Bankruptcy Act, existing at the initiation of both the master lease and sublease in this case, also invalidated general non-assignment covenants or conditions in leases. 11 U.S.C. § 110b (1976). Although this same provision did permit the enforcement of express covenants terminating a lease, based upon an assignment by operation of law or the bankruptcy of a specified party to the lease, that language was not deemed to preclude a court of equity from refusing to enforce such a provision “if compelling equitable and policy considerations so require[d].” In re Huntington Limited, 654 F.2d 578, 583-84 (9th Cir.1981). We must, therefore, conclude that the appellants’ economic expectations in purchasing their real property were presumptively limited by these bankruptcy rights, which were, even at the time the lease was written, available to their lessees. In any event, “[n]ot only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order.” Home Bldg. & Loan Assoc. v. Blaisdell, 290 U.S. 398, 435, 54 S.Ct. 231, 239, 78 L.Ed. 413 (1934). Hence, the appellants purchased this real property “subject to [the] constitutional power in the Congress to legislate the subject of bankruptcies ... in a manner consonant with the Fifth Amendment.” Wright v. Union Central Life Ins. Co., supra, 304 U.S., at 502, 516, 58 S.Ct. at 1025, 1033. We believe that this bankruptcy power included Congress’ authority to permit the cure, assumption and assignment of unexpired leases and to deny the enforcement of ipso facto clauses in cases under Title 11 of the United States Code. As a final due process consideration, we hold that 11 U.S.C. § 365, as written and as applied by the lower court, is not “unreasonable, arbitrary or capricious,” and that it constitutes a rational means for adjusting the relationship between financially-troubled lessees, their lessors, and their other creditors, and that it manifests a “real and" }, { "docid": "22393202", "title": "", "text": "the debtor as well as his discharge from indebtedness. This legislation for rehabilitation has been upheld as within the subject of bankruptcies. But respondent urges that under the Bankruptcy Clause Congress is confined to legislation for the adjustment of the debtor-creditor relationship, and insists that the purchaser at an Indiana judicial sale is not a creditor but a grantee with rights acquired by the purchase, separate and distinct from the rights and obligations arising from the creation of the debt. While there may be no relation of debtor and creditor between the bankrupt and the purchaser of his property at judicial sale, we think the purchaser at a judicial sale does enter into the radius of the bankruptcy power over debts.- His purchase is in the liquidation of the indebtedness. The debtor has a right of redemption of which the purchaser is advised, and until that right of redemption expires the rights of the purchaser are subject to the power of the Congress over the relationship of debtor and creditor and its power to legislate for the rehabilitation of the debtor. The person whose land has been sold at fore closure sale and now holds a right of redemption is, for all practical purposes, in the same debt situation as an ordinary mortgagor in default: both are faced with the same ultimate prospect, either of paying a certain sum of money, or of being completely divested of their land. We think the provision for the extension of the period of redemption comes clearly within the power of the Congress under the bankruptcy clause. But respondent presses a further argument that the Fifth and Tenth Amendments are violated. (a) The Fifth Amendment is said to be violated and the property of respondent, the purchaser at the judicial sale, taken without due process, by the provision for extension of the time of redemption. Section 75 (n) provides that.“the period of redemption shall be extended ... for the period necessary for the purpose- of carrying out the provisions of this section.” The stay may be approved for the period during which the debtor" }, { "docid": "22659004", "title": "", "text": "Mb. Chief Justice Hughes delivered the opinion of the Court. Appellant contests the validity of Chapter’339 of the Laws of Minnesota of 1933, p. 514, approved April 18, .1933, called the Minnesota Mortgage Moratorium Law, as being repugnant to the contract clause (Art. I, § 10) and the due process and equal protection clauses of the Fourteenth Amendment, of the Federal Constitution. The statute was sustained by the Supreme Court of Minnesota, 189 Minn. 422, 448-249 N.W. 334, 893, and the case comes here on appeal. The Act provides that, during the emergency declared to exist, relief may be had. through authorized judicial proceedings with respect to foreclosures of mortgages, and execution sales, of real estate; that sales may be postponed and periods of redemption may be extended. The Act does not apply to mortgages subsequently made nor to' those made previously which shall be extended for a period ending more than a year after the passage of the Act (Part One, § 8). 'There are separate provisions in Part Two relating to homesteads, but these are to apply “ only to cases not entitled to relief under some valid provision of Part One.” The Act is to remain in effect “ only during the continuance of the emergency and in no event beyond Ma.y 1, 1935.” No extension of the period for redemption and no postponement of sale is to be allowed which would have the effect of extending the period of redemption beyond that date.' Part Two, § 8. The Act declares that the various provisions for relief are severable; that each is to stand on its own footing with respect to validity. Part One, § 9. We are here concerned with the provisions of Part One, § 4, authorizing the District Court of the county to extend the period of redemption from foreclosure sales “ for such additional time as the court may deem just and equitable,” subject to the above described limitation. The extension is to be made upon application to the court, on notice, for an order determining the reasonable value of the income on" }, { "docid": "15245107", "title": "", "text": "for value of improvements impairs obligation of contract). In this sense, the Supreme Court treated the impairment of contract clause as the obverse of the grant of congressional authority in article I, section 8 of the Constitution to establish uniform laws on the subject of bankruptcies. U.S. Const, art. I, § 8, cl. 4. Congress could, but the states could not, impair the obligation of undertakings by debtors. See Hanover National Bank v. Moyses, 186 U.S. 181, 188, 22 S.Ct. 857, 860, 46 L.Ed. 1113 (1902) (“The [Bankruptcy] grant to Congress involves the power to impair the obligation of contracts, and this the States were forbidden to do.”). In 1934 the Supreme Court took a historic step toward inverting the longstanding dichotomy between public and private contracts. In the significant case of Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934), the Court held that the contract clause should not be read as a serious impediment to state social and economic legislation affecting private contracts. Blaisdell examined a Minnesota mortgage moratorium law, enacted as an emergency measure during the great Depression, which extended the redemption period for mortgages. In sustaining the extended redemption period, the Court held for the first time that legislation retroactively affecting the value of an underlying contractual obligation did not violate the contract clause when enacted in pursuit of legitimate economic or social objectives. “The economic interests of the State,” the Court held, may justify the exercise of its continuing and dominant protective power notwithstanding interference with contracts.... The question is not whether legislation affects contracts incidentally, or directly or indirectly, but whether the legislation is addressed to a legitimate end and the measures taken are reasonable and appropriate to the end. 290 U.S. at 437-38, 54 S.Ct. at 239-40. The Court characterized the power of economic and social legislation to affect private contractual arrangements as the “reserved power,” and noted that the states’ reserved police powers and the contract clause must be construed in harmony with one another: This principle precludes a construction which would permit the" }, { "docid": "22393205", "title": "", "text": "reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order.” And the fact that in this case the purchaser at the foreclosure sale was also the mortgagee is not a determining factor. Any purchaser at a judicial sale must purchase subject to the possibility of the exercise of the bankruptcy power in a manner consonant with the Fifth Amendment. We have held that § 75 (s) does not unconstitutionally affect the rights of the mortgagee. We do not think the provision for extension of the period of redemption in § 75 (n) is invalid. The rights of the purchaser are preserved, the possibility of enjoyment is merely delayed. The rights of a purchaser, who under the state law is entitled to the redemption money or possession within a year., are not substantially different from those of a mortgagee entitled, on the, maturity of the obligation, to payment or sale of the property. (b) In view of our decision that the law is within the bankruptcy power, scant reliance can be placed on the Tenth Amendment. Respondent argues that to subject property bought in at a foreclosure sale tó the extended redemption period and other provisions of § 75 (s), “would be a direct invasion of the powers reserved to the State by the Constitution, and a violation of [respondent’s] property fights theretofore determined by the> courts of the State of Indiana in accordance with the law of that State.” If the argument is that Congress has no power to alter property rights, because the regulation of rights in prop- ' erty is a matter reserved to the States, it is futile. Bankruptcy proceedings constantly modify and affect the property rights established by state law. A familiar instance is the invalidation of transfers working a preference, though valid under state law when made. Recent decisions illustrate other instances: “A court of bankruptcy may affect the interests of lien holders in many ways. To carry out the purposes of the Bankruptcy Act, it may direct that all liens upon property forming a part" }, { "docid": "23034605", "title": "", "text": "an action at law for the debt might lie, the judgment debtor’s equity of redemption could not be sold under an execution upon that judgment, and since the right to bring a second action to recover a defi ciency resulting on a foreclosure sale, if it existed at all under the new legislation, was drastically'restricted. Accordingly, it held that in light of such cases as Barnitz v. Beverly, 163 U. S. 118, the new § 1083 could not be applied to mortgage contracts previously made, without violation of the contract clause of the Federal Constitution. We take a. different view. . The formula which a legislature may adopt for determining the amount of a deficiency judgment is not fixed .and invariable. That \"which exists at the date of the execution of the mortgage does not become so embedded in the contract between the parties that it cannot be constitutionally altered. As this Court said in Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 435, “Not only are existing laws, read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order.” And see Voeller v. Neilston Warehouse Co., 311 U. S. 531. It is that reserved legislative power with which we are here concerned. The control of judicial sales of realty by courts of equity and by legislatures in order to prevent sacrificial prices has.a long history. Weiner, Conflicting Functions of the Upset Price, 27 Col. L. Rev. 132,133, et seq. In chancery sales in England during-the eighteenth century, there developed the practice of opening the bidding, prior to confirmation, on an offer to advance the price 10 per cent. Graffam v. Burgess, 117 U. S. 180, 191. That practice, much criticized by Lord Eldon, was gradually supplanted by reserved bidding — in the first instance by equity (Jervoise v. Clarke, 1 Jac. & W. 388) and subsequently by stat ute. Sale of Land by Auction Act, 1867, 30 & 31 Viet. c. 48, § 7;" }, { "docid": "13790420", "title": "", "text": "but Justice Hughes in concluding his opinion observed that what was said on that point is also applicable to the contention there presented under the due process clause of the Federal Constitution, and whieh is so ably pressed here by counsel. He went on to say that the state continues to possess authority to safeguard the vital interests of its people, and it does not matter that legislation appropriate to that end, “has the result of modifying or abrogating contracts already in effect.” Citing Stephenson et al. v. Binford et al., 287 U. S. 251, 53 S. Ct. 181, 77 L. Ed. 288, 87 A. L. R. 721. And, page 435 of 290 U. S., 54 S. Ct. 231, 239: “Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order.” In the Chilton ease the point is pressed that while Chilton took the property subject to the mortgage, he is not directly obligated, and the holder of the note is not a creditor and not subject to the Bankruptcy Act. The stay authorized by section 75 (o), 11 TJSCA § 203 (o), however, applies not only to personal actions against the farmer, but is an in rem proceeding to the extent that it applies specifically to his property. In the Cope ease, No. 8068, it is contended that the sale and foreclosure constituted a satisfaction of the indebtedness, and that from that time the relation of creditor and debtor ceased to exist, and that Cope had no interest in the property, other than the right to redeem. Under the laws and decisions of Colorado, Moncrieff v. Hare, 38 Colo. 221, 87 P. 1082, 7 L. R. A. (N. S.) 1001, and Plains Loan, Realty & Investment Co. v. Hood, 76 Colo. 323, 230 P. 1008, it is held that when the mortgagee at the foreclosure sale bids and pays the full amount of the debt and costs, etc., surrenders and cancels the" }, { "docid": "22937318", "title": "", "text": "be extinguished in a foreclosure proceeding. Secondly, the Defendant in this case acquired its mortgage after the effective date of the Code; therefore, the inquiry is whether bankruptcy legislation may prospectively impair freedom of contract. It has long since been settled by the Supreme Court that the due process clause is not a significant restraint on the government’s right to act prospectively in matters of economic or social welfare. West Coast Hotel v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937); United States v. Carolene Products Company, 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938); Lincoln Federal Labor Union v. Northwestern Iron & Metal Company, 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212 (1949); Williamson v. Lee Optical Company, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); and Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). The Supreme Court has made it clear that “existing laws are read into contracts.” The mortgage contract was made subject to constitutional power in the Congress to legislate on the subject of bankruptcies. Impliedly, this was written into the contract ... ‘Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order.’20 Wright v. Union Central Life Insurance Company, 304 U.S. 502, 516, 58 S.Ct. 1025, 1033, 82 L.Ed. 1490 (1937). Congress announced in Section 506(d) to the financing industry that henceforth a lien would not be protected to the extent it exceeds the value of the collateral. Lenders had sufficient notice to alter their lending practices accordingly, i. e., cease making undersecured loans or increase their lending rate to cover losses anticipated from debtor bankruptcies. “The guaranty of due process . . . demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be obtained.” Nebbia v. New York, 291 U.S. 502, 54 S.Ct." }, { "docid": "2459826", "title": "", "text": "June 28, 1934 which amended the Bankruptcy Act of 1898. Under this act a bankrupt farmer who failed to obtain the consents requisite to a composition under Section 75 of the Bankruptcy Act was given certain options with regard to mortgaged property. The debtor could, if the mortgagee assented, purchase the mortgaged property at its then appraised value by agreeing to make certain deferred payments. If the mortgagee refused to assent to such purchase, the debtor could stay all proceedings for a period of five years during which time the debtor could retain possession of the mortgaged property provided reasonable rental was paid annually to the mortgagee. At the end of the five year period, or prior thereto, the debtor could purchase the property by paying into the court the appraised price of the property. It was specifically provided that the Act applied to debts existing at the time the Act became effective. In considering the constitutionality of this Act the Court said: “The bankruptcy power, like the other great substantive powers of Congress, is subject to the Fifth Amendment. Under the bankruptcy power Congress may discharge the debtor’s personal obligation, because, unlike the States, it is not prohibited from impairing the obligation of contracts. Compare Mitchell v. Clark, 110 U.S. 633, 634 [4 S.Ct. 312, 28 L.Ed. 279]. But the effect of the Act here complained of is not the discharge of Radford’s personal obligation. It is the taking of substantive rights in specific property acquired by the Bank prior to the Act. In order to determine whether rights of that nature have been taken, we must ascertain what the mortgagee’s rights were before the passage of the Act. We turn, therefore, first to the law of the State”, (footnotes omitted). 295 U.S. at 589-590, 55 S.Ct. at 863. The Court held that the operation of this Act resulted in the taking of a substantive property right without due process of law in violation of the Fifth Amendment. Other cases have upheld the constitutionality of Section 522(f) as applied to liens created before the enactment of the Bankruptcy Reform" }, { "docid": "22393204", "title": "", "text": "seeks to effect, a composition, and, as contemplated by § 75 (s), for a moratorium period not exceeding three years, during which the couxt’s equitable supervision over the land continues, and a reasonable rental is required. That such an extension is consonant with the due process clause of the Fifth Amendment is indicated by our decision in Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398, where we held that neither the due process clause of the Fourteenth- Anxendxnent nor the contracts clause was violated by an emergency state statute authorizing extension of the period of redemption from foreclosure sales, for a just and equitable period not exceeding two years, 'conditioned on payment by the mortgagor of a reasonable rental, as directed by the court. The mortgage contract was made subject to constitutional power in the Congress to' legislate on the subject of bankruptcies. Impliedly, this was written into the contract between petitioner and respondent. “Not only are existing laws read into contracts in order to fix obligations as between parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order.” And the fact that in this case the purchaser at the foreclosure sale was also the mortgagee is not a determining factor. Any purchaser at a judicial sale must purchase subject to the possibility of the exercise of the bankruptcy power in a manner consonant with the Fifth Amendment. We have held that § 75 (s) does not unconstitutionally affect the rights of the mortgagee. We do not think the provision for extension of the period of redemption in § 75 (n) is invalid. The rights of the purchaser are preserved, the possibility of enjoyment is merely delayed. The rights of a purchaser, who under the state law is entitled to the redemption money or possession within a year., are not substantially different from those of a mortgagee entitled, on the, maturity of the obligation, to payment or sale of the property. (b) In view of our decision that the law is within the bankruptcy power," }, { "docid": "22393200", "title": "", "text": "bring the 120 acres into the jurisdiction of the Bankruptcy Court, and we think it had that effect. Second. The conclusion that all the lands in controversy, except the 80.31-acre tract, are.within the jurisdiction of the Bankruptcy Court under the petitioner’s amendment asking to be adjudged a bankrupt and are lands subject to petitioner’s right of redemption, as extended by subsection (n) of § 75, requires the reversal of the judgments below, as to these lands, unless the provisions of § 75 (n), extending the period of redemption, are unconstitutional. Respondent insists that these provisions are a direct invasion of the State’s rights under the Tenth Amendment and violative of the respondent’s own rights, by virtue of its title acquired by purchase at the judicial sale, in contravention of the Fifth Amendment. The right of the Congress to legislate on the subject of bankruptcies is granted by the Constitution in general terms. “The Congress shall have power ... To establish . . . uniform laws on the subject of Bankruptcies throughout the United States,” Article I, § 8, clause 4. To this specific grant, there must be added the powers of the general grant of clause eighteen. “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . .” The subject of bankruptcies is incapable of final definition. The concept changes. It has been recognized that it is not limited to the connotation of the phrase in England or the States, at the time of the formulation of the Constitution. An adjudication in bankruptcy is not essential to the jurisdiction. The subject of bankruptcies is nothing less than “the subject of the. relations between an insolvent or nonpaying or fraudulent debtor and his creditors, extending to his and their relief.” This definition of Judge Blatchford, afterwards a member of this Court, has been cited with approval here. The development of bankruptcy legislation has been towards relieving the honest debtor from oppressive indebtedness and permitting him to start afresh. By the Act of March 3, 1933, the Congress deliberately undertook the rehabilitation of" }, { "docid": "22937319", "title": "", "text": "to legislate on the subject of bankruptcies. Impliedly, this was written into the contract ... ‘Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order.’20 Wright v. Union Central Life Insurance Company, 304 U.S. 502, 516, 58 S.Ct. 1025, 1033, 82 L.Ed. 1490 (1937). Congress announced in Section 506(d) to the financing industry that henceforth a lien would not be protected to the extent it exceeds the value of the collateral. Lenders had sufficient notice to alter their lending practices accordingly, i. e., cease making undersecured loans or increase their lending rate to cover losses anticipated from debtor bankruptcies. “The guaranty of due process . . . demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be obtained.” Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934). Lien avoidance is not unreasonable in light of the scope of the bankruptcy power and the forewarning provided the lending industry. It is neither arbitrary nor capricious as it applies to all undersecured lien holders. Clearly it has a real and substantial relation to the object of providing debtor relief. Section 506(d) affords lien holders adequate substantive due process. If the Defendant had acquired his lien prior to the effective date of the Code, a substantive due process challenge would be more serious. However, although this issue is not decided here, this Court has held that the retroactive application of Section 522(f) is constitutional and does not feel that the conclusion would be different in this case. See In re Clark, 11 B.R. 828 (Bkrtcy.1981). CONCLUSION The only reasonable construction of “lien” as used in Section 506(d) is that it does refer to real property mortgages. It is used without qualification which indicates the definition of “lien” provided in Section 101(28) is applicable. The fact that Congress also defined different" }, { "docid": "1081204", "title": "", "text": "adoption and passage of such (State) Constitution and laws to the contrary notwithstanding.’ ” Id. at 111 (citation omitted). This measure was upheld by several lower federal courts, id. at 112 and 182-183 n. 21, while retroactive application of bankruptcy laws in general received the imprimatur of the Supreme Court in Hanover National Bank v. Moyses, 186 U.S. 181, 22 S.Ct. 857, 46 L.Ed. 1113 (1902). Radford may have cast a shadow over this history, although it was inconclusive, see C. Warren, Bankruptcy in United States History, supra at 156-159, and short-lived. None of the opinions coming in the wake of Radford questioned the retroactive application of Section 75(s). See Vinton Branch, supra; Adair, supra; Wright, supra; Union Central, supra; Sen.Rep.No. 985, 74th Cong., 1st Sess., 4 (1935). To the contrary, Wright, supra 304 U.S. at 516, 58 S.Ct. at 1033, observed that: The mortgage contract was made subject to constitutional power in the Congress to legislate on the subject of bankruptcies. Impliedly, this was written into the contract between petitioner and respondent. “Not only are existing laws read into contracts in order to fix obligations as between parties but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order.” (Citation omitted.) This is the short and inevitable answer to claims that retroactive application of the bankruptcy power is unconstitutional. 3. Substantive Due Process Radford’s substantive due process holding has been the lightning rod for debate on Section 522(f), and the principal ground for declaring the statute void. See In re Rodrock, 3 B.R. 629, 6 B.C.D. 267 (Bkrtcy., D.Colo.1980) (J. Moore); In re Hoops, supra (J. Keller); In re Jackson, 4 B.R. 293 (Bkrtcy., D.Colo.1980) (J. Clark and McGrath); In re Lucero, 4 B.R. 659, 6 B.C.D. 477 (Bkrtcy., D.Colo.1980) (J. Moore); In re Malpeli, 7 B.R. 508 [Current Binder] CCH Bank.L.Rep., ¶67,705 (N.D.Ill., November 24, 1980) (J. Eisen). Cf. In re Hawley, 4 B.R. 147, 6 B.C.D. 365 (Brktcy., D.Or. 1980) (holding turns more on retroactivity than substantive due process). Cases upholding the statute, on the other hand," }, { "docid": "13790419", "title": "", "text": "until the end of the five year period; so there can be no impairment until that time; and the Act is meticulous in requiring the court’s approval of every step in the procedure. Finally, we must not overlook the importance of section 78 (11 TJSCA § 301), a solemn declaration of policy by the Congress that a national emergency exists, which renders imperative the further exercise of the bankruptcy powers of the Congress., The Supreme Court has said in the Minnesota Case, Home Building & Loan Ass’n v. Blaisdell, 290 U. S. 398, 54 S. Ct. 231, 239, 78 L. Ed. 413, 88 A. L. R. 1481, that while Congress cannot create powers, it can, under an emergency, exercise powers that have heretofore lain dormant. It is not for the court to question this declaration by Congress, whieh may be said to be an exercise of the broad police power vested in the federal government, and whieh exists independent of bankruptcy. The Minnesota Case, supra, dealt with the rights of the state to impair contracts, but Justice Hughes in concluding his opinion observed that what was said on that point is also applicable to the contention there presented under the due process clause of the Federal Constitution, and whieh is so ably pressed here by counsel. He went on to say that the state continues to possess authority to safeguard the vital interests of its people, and it does not matter that legislation appropriate to that end, “has the result of modifying or abrogating contracts already in effect.” Citing Stephenson et al. v. Binford et al., 287 U. S. 251, 53 S. Ct. 181, 77 L. Ed. 288, 87 A. L. R. 721. And, page 435 of 290 U. S., 54 S. Ct. 231, 239: “Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order.” In the Chilton ease the point is pressed that while Chilton took the property subject to the" }, { "docid": "22393203", "title": "", "text": "for the rehabilitation of the debtor. The person whose land has been sold at fore closure sale and now holds a right of redemption is, for all practical purposes, in the same debt situation as an ordinary mortgagor in default: both are faced with the same ultimate prospect, either of paying a certain sum of money, or of being completely divested of their land. We think the provision for the extension of the period of redemption comes clearly within the power of the Congress under the bankruptcy clause. But respondent presses a further argument that the Fifth and Tenth Amendments are violated. (a) The Fifth Amendment is said to be violated and the property of respondent, the purchaser at the judicial sale, taken without due process, by the provision for extension of the time of redemption. Section 75 (n) provides that.“the period of redemption shall be extended ... for the period necessary for the purpose- of carrying out the provisions of this section.” The stay may be approved for the period during which the debtor seeks to effect, a composition, and, as contemplated by § 75 (s), for a moratorium period not exceeding three years, during which the couxt’s equitable supervision over the land continues, and a reasonable rental is required. That such an extension is consonant with the due process clause of the Fifth Amendment is indicated by our decision in Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398, where we held that neither the due process clause of the Fourteenth- Anxendxnent nor the contracts clause was violated by an emergency state statute authorizing extension of the period of redemption from foreclosure sales, for a just and equitable period not exceeding two years, 'conditioned on payment by the mortgagor of a reasonable rental, as directed by the court. The mortgage contract was made subject to constitutional power in the Congress to' legislate on the subject of bankruptcies. Impliedly, this was written into the contract between petitioner and respondent. “Not only are existing laws read into contracts in order to fix obligations as between parties, but the" }, { "docid": "18641675", "title": "", "text": "the Fifth Amendment. The Court sustained this exercise of bankruptcy power because “The injunction here goes no further than to delay the enforcement of the contract. It affects only the remedy.” Id., p. 681, 55 S.Ct. p. 608. The Court noted that the statute did not directly impair the obligation of the contracts themselves. Kuehner v. Irving Trust Co., 299 U.S. 445, 57 S.Ct. 298, 81 L.Ed. 340 (1937) concerned a section of the former Bankruptcy Act which limited the claim of a landlord for indemnity under a lease to three years’ rent. The Supreme Court indicated that the landlord did not have a lien on the debtor’s assets and noted that she would get back her property. Therefore, Congress had not taken away all of her remedies under the lease. Concluding the statute did not violate the Fifth Amendment, the Court stated at page 452, 57 S.Ct. at page 301: While . . . the Fifth Amendment forbids the destruction of a contract it does not prohibit bankruptcy legislation affecting the creditor’s remedy for its enforcement against the debtor’s assets, or the measure of the creditor’s participation therein, if the statutory provisions are consonant with a fair, reasonable, and equitable distribution of those assets. In Gelfert v. National City Bank of New York, 313 U.S. 221, 61 S.Ct. 898, 85 L.Ed. 1299 (1941), the Supreme Court sustained a New York statute limiting the right of creditors to recover a deficiency after a sale of mortgaged property. The Court at page 231, 61 S.Ct. at page 901-902 stated: “Not only are existing laws read into contracts in order to fix obligations as between the parties, the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order.” (cite omitted) However, the Court stated clearly that the New York statute: “[C]annot fairly be said to do more than restrict the mortgagee to that for which he contracted, namely, payment in full.” Here . . . the obligation of the mortgagee’s contract is recognized; the statute does no more than limit “that right so" }, { "docid": "15656212", "title": "", "text": "and legal title. Nothing remains in the mortgagor except an equity of redemption and the'right to occupy the property during the 'period of' redemption. Berthold v. Holman, 12 Minn. 335 (Gil. 221); 93 Am. Dec. 233; Tinkcom v. Lewis, 21 Minn. 132; Gardner v. W. M. Prindle & Co., 185 Minn. 147, 240 N. W. 351; Peterson v. Metropolitan Life Ins. Co., 189 Minn. 98, 248 N. W. 667. The validity of such objection has just been sustained by this court in a decision by Nordbye, District Judge, in the matter of Peter Klein and Augusta Klein, debtors, in proceedings for a- composition or extension, 9 F. Supp. 57. I am in full accord with that' holding. The court clearly demonstrates that it was not the intention of the act to toll the period of redemption by the mere filing of the petition for composition or extension under section 75, Agricultural Compositions and Extensions, at least without any proceedings to enjoin the foreclosure of the mortgage or interfere with the running of the time for. redemption. Prior to the adoption of section 75 the filing of a petition in bankruptcy did not extend the period of redemption in a mortgage foreclosure proceeding under the statutes of the state of Minnesota. Garber v. Bankers’ Mortgage Co. et al. (D. C.) 27 F.(2d) 609; In re Goldman (D. C.) 102 F. 122; Collier on Bankruptcy (13th Ed.) 1673. A careful reading of section 75 for the purpose of ascertaining whether Congress intended to change this mile leads one to the. conclusion that such was not the ease. The only provisions of section 75 material to a consideration of the present objection are: (a)- Subdivision (n) which provides that the filing of a petition under this section shall subject the farmer and his property wherever located to the exclusive jurisdiction of the court, which section further provides: “In proceedings iinder this section, except as otherwise provided herein, the jurisdiction and powers of the court, the title, powers, and duties of its officers, the duties of the farmer, and the rights and liabilities of" }, { "docid": "10164658", "title": "", "text": "Supreme Court held that a violation of the Fifth Amendment Due Process Clause occurs when retrospective application of a bankruptcy statute destroys vested property rights. In that case, the constitutionality of the Frazier-Lemke Act was in issue. The debtor in Radford took advantage of Section 75 of the Bankruptcy Act as amended by the Frazier-Lemke Act of 1934. The Act provided that a farmer who had failed to obtain the requisite consents for a composition under Section 75 of the Bankruptcy Act could, upon being adjudged a bankrupt, acquire alternative options with respect to mortgaged property. The debtor in Rad-ford took advantage of these provisions, and sought to stay all proceedings against his farm by the mortgagee bank for five years, during which time the debtor was to retain possession provided he paid a reasonable rental. At the end of the five years, or prior thereto, the debtor could purchase the property by paying into the court the appraised price of the property. The mortgagee bank refused to consent to the sale of the property to the debtor under the terms of the Frazier-Lemke Act. The Supreme Court held that retrospective application of the Frazier-Lemke Act destroyed the bank’s vested property rights and thus violated the Fifth Amendment. Two years later, the Supreme Court found constitutional and upheld a post-Radford amendment to the Frazier-Lemke Act which shortened the stay period for mortgagees from five to three years. Wright v. Vinton Branch of the Mountain Trust Bank of Roanoke, 300 U.S. 440, 57 S.Ct. 556, 81 L.Ed. 736 (1937). The Supreme Court in the Radford case reiterated that the Constitutional grant of authority to Congress to make uniform bankruptcy laws is subject to the Due Process Clause of the Fifth Amendment, which protects vested property rights. Congress, however, is not prohibited from enacting legislation which impairs the obligation of contract, though the states clearly are so prohibited. Article I, Section 10, United States Constitution. “Indeed every bankruptcy act avowedly works such impairment. While, therefore, the Fifth Amendment forbids the destruction of a contract it does not prohibit bankruptcy legislation affecting the" } ]

[ { "docid": "569622", "title": "", "text": "information under the Freedom of Information Act. This allegation counts for little because Nichols could have obtained that information in 1957 if he had filed suit then. This finding is also not clearly erroneous. If Nichols knew he had been wronged, he should have filed suit within the limitation period. See United States v. Kubrick, 444 U.S. 111, 124, 100 S.Ct. 352, 360, 62 L.Ed.2d 259 (1979). We therefore conclude that Nichols’ cause of action accrued in 1957. B. Tolling Due to Administrative Proceedings In this circuit, the general rule is that if prior resort to an administrative body is a prerequisite to review in court, the running of the limitation period will be tolled during the administrative proceeding. See Mt. Hood Stages, Inc. v. Greyhound Corp., 616 F.2d 394, 400-02, 405 (9th Cir.), cert. denied, 449 U.S. 831, 101 S.Ct. 99, 66 L.Ed.2d 36 (1980). This rule does not help Nichols. His appeals to the three Navy administrative bodies, even assuming they were required, were denied before the end of 1958. There is no indication in the record that Nichols initiated any more administrative proceedings in the years that followed. C. Equitable Tolling Because of BGNR’s 1977 Decision Nichols argues that the 1977 decision of the Board for Correction of Naval Records (BCNR) either created a new cause of action in 1977 or suspended the running of the statute of limitation. Both claims are without merit. First, although claims filed with the BCNR must be filed within three years, BCNR has explicit statutory discretion to excuse a late filing when “in the interest of justice.” 10 U.S.C. § 1552(b). BCNR’s decision to entertain Nichols’ late claim cannot suspend the six-year period of 28 U.S.C. § 2401(a) because BCNR has no comparable authority to excuse lateness under that statute. Next, no new cause of action accrued in 1977. Nichols does not challenge the BCNR decision upgrading the status of his discharge as arbitrary or capricious. To the extent he challenges the BCNR decision for failing to order his reinstatement, his challenge is precluded since he failed to ask for that" } ]

[ { "docid": "18757623", "title": "", "text": "where the Court of Appeals for the District of Columbia Circuit found a class action seeking to upgrade discharges barred by the six-year statute of limitations. In that case, review of the discharge itself was sought and not review of any military correction board action. The court said: “We need not and do not decide whether, had a named plaintiff sought and received a final decision from a discharge review board, the statute of limitations could have been tolled in any way.” Id. at 115. Similarly, in Nichols v. Hughes, 721 F.2d 657 (9th Cir.1983), the court found that the plaintiff’s cause of action had accrued at the time of discharge and was thus time-barred. While plaintiff had sought and obtained relief from the BCNR, the district court action there under review challenged the original discharge and not the BCNR decision. The plaintiff was not challenging the BCNR action because he had received a favorable ruling from that Board. These two cases are distinguishable from this record because they challenged the discharge itself, while the instant case only challenges a decision of the BCNR. IV. Accordingly, we will vacate the order of the district court, dismissing the complaint, and remand for further consideration in light of this opinion. . See Geyen v. Marsh, 775 F.2d 1303 (5th Cir. 1985). The district court stated in its opinion in the instant case: \"In short, federal case law does not support an exception to the statute of limitations for a plaintiff such as Mr. Dougherty.\" (Plaintiffs App. at 39). Had the district court been presented with cases such as Geyen, supra; Schmidt v. United States, 13 M.L.R. 2075 (N.D. Cal.1984); and Mulvaney v. Stetson, 470 F.Supp. 725 (N.D.Ill.1979), its inquiry would have been different. We also note in reviewing the record that the pleadings were confusing and difficult to interpret. The district court very ably discerned the proper issue. It is clear from reading the transcript of the oral opinion of the district court delivered from the bench that the statute of limitations issue was properly presented to the court. . Dougherty v." }, { "docid": "569618", "title": "", "text": "In connection with those appeals, he sought to examine documents used against him in the discharge proceedings. He was refused access to some documents and given copies of others with all names except his own obliterated. His appeals to the Navy Discharge Review Board, the Board of Veterans Appeal, and the Board for Correction of Naval Records were unsuccessful. In 1975, Nichols renewed his plea to the Board for Correction of Naval Records. This time, his appeal was successful. The Board in January 1977 found that there had been “an injustice warranting corrective action” and recommended that his discharge be upgraded to a “general discharge by reason of misconduct.” An Assistant Secretary of the Navy approved the Board’s recommendation one month later. * Nichols filed an initial complaint in federal district court on October 30, 1979. His second amended complaint alleged that various Navy officers had violated the Constitution and Navy regulations, and had otherwise deprived Nichols of his civil rights by their conduct leading to his 1957 discharge. Nichols sought a declaration that the 1957 discharge was void and an order reinstating him into the Navy. The district court held that his action was barred by the applicable statute of limitation, and entered judgment in favor of the Navy. II. DISCUSSION Nichols does not dispute the applicability of the six-year limitation period of 28 U.S.C. § 2401(a) to his claims. See Saffron v. Department of the Navy, 561 F.2d 938, 941-46 (D.C.Cir.1977), cert. denied, 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780 (1978); Werner v. United States, 188 F.2d 266, 268 (9th Cir.1951) (§ 2401(a) applies to equitable claims against the government). Rather, he advances three arguments for finding that the application of the statute to his case does not bar his claims. First, he contends that his cause of action did not accrue more than six years ago. Second, he maintains that administrative proceedings tolled the statute. Third, he argues that the Board for Correction of Naval Records’ action in 1977 created a new cause of action for which the limitation period has not yet run. We" }, { "docid": "18575268", "title": "", "text": "no doubt that this cause of action is distinct from the first, in which Geyen challenges his activation and the Army’s denial of his hardship applications. Neither action depends upon the other for its vitality. See Oppenheim v. Campbell, 571 F.2d 660, 663 (D.C.Cir.1978). The two actions seek review of different final administrative orders. Moreover, the issue in an action challenging denial of a hardship discharge is whether the service acted in accordance with regulations in effect at the time of denial. On review, however, the ADRB must consider subsequent policies and procedures more favorable to the serviceman. See 32 C.F.R. § 70.-9(c)(1) (1984). The ABCMR, in determining whether “error or ... injustice” has been committed, 10 U.S.C. § 1552(a) (1982), must determine whether the ADRB has properly applied the new standards. Thus, the court’s task in reviewing the two orders may be quite different. Other courts considering suits such as Geyen’s have treated the two causes of action as distinct. See Bittner v. Secretary of Defense [625 F.Supp. 1022], Civ. No. 84-1730 (D.D.C. June 13, 1985); Schmidt v. United States, No. C-83-3834 J.P.V. (N.D.Cal. Apr. 25, 1984); cf. Walters [v. Secretary of Defense], 725 F.2d [107] at 115 [D.C.Cir.1983] (leaving issue open); Nichols [v. Hughes], 721 F.2d [657] at 660 [9th Cir.1983] (where plaintiff does not challenge Board’s decision as arbitrary or capricious, no new cause of action accrues); see also Oppenheim, 571 F.2d at 663 (finding APA review to be distinct cause of action in nonmilitary context). As we have noted, the six-year statute of limitations in § 2401(a) applies to suits seeking nonmonetary relief through non-statutory review of agency action. The issue, therefore, is when Geyen’s second cause of action accrued. We hold that it accrued at the time of the ABCMR’s decision in 1982. See Impro Products [v. Block], 722 F.2d [845] at 850 [D.C. Cir.1983]. Consequently, the action is not time barred. 775 F.2d at 1308, 1309 (footnote omitted). Consistent with this reasoning, we hold that Mr. Smith’s cause of action challenging the ABCMR decision accrued at the time of that decision in 1983. Therefore," }, { "docid": "18575267", "title": "", "text": "by 28 U.S.C. § 2401(a). However, with respect to the Army’s contention that Mr. Smith’s action challenging the decisions of the ABCMR and the ADRB is time-barred, we agree with and adopt the reasoning of the Fifth Circuit in its recent decision Geyen v. Marsh, 775 F.2d 1303 (5th Cir.1985), a case the Army characterizes as “practically indistinguishable on its facts from this case.” Brief for Appellant at 32. Geyen was discharged with an undesirable discharge in 1972 at his request and in lieu of a court martial because of an extended AWOL. More than six years later, he applied to both the ADRB and the ABCMR to have his discharge upgraded to honorable. Mr. Geyen alleged that he was improperly activated and denied a hardship discharge. He also challenged the ABCMR decision denying him an upgraded discharge. The Fifth Circuit viewed Mr. Geyen’s challenges as distinct causes of action: Geyen alleges that the ABCMR’s 1982 decision denying him an upgraded discharge was arbitrary, capricious, unsupported by substantial evidence, and erroneous in law. We have no doubt that this cause of action is distinct from the first, in which Geyen challenges his activation and the Army’s denial of his hardship applications. Neither action depends upon the other for its vitality. See Oppenheim v. Campbell, 571 F.2d 660, 663 (D.C.Cir.1978). The two actions seek review of different final administrative orders. Moreover, the issue in an action challenging denial of a hardship discharge is whether the service acted in accordance with regulations in effect at the time of denial. On review, however, the ADRB must consider subsequent policies and procedures more favorable to the serviceman. See 32 C.F.R. § 70.-9(c)(1) (1984). The ABCMR, in determining whether “error or ... injustice” has been committed, 10 U.S.C. § 1552(a) (1982), must determine whether the ADRB has properly applied the new standards. Thus, the court’s task in reviewing the two orders may be quite different. Other courts considering suits such as Geyen’s have treated the two causes of action as distinct. See Bittner v. Secretary of Defense [625 F.Supp. 1022], Civ. No. 84-1730 (D.D.C. June" }, { "docid": "18757621", "title": "", "text": "While we know of no binding precedent, our decision is consistent with those of other courts faced with this issue. In Geyen v. Marsh, supra, plaintiff had been given an undesirable discharge by the Army in lieu of a court martial after going AWOL. Ten years later he petitioned the Army Board for Correction of Military Records (“ABCMR”). The ABCMR denied his claim and Geyen sought review in the district court. The district court dismissed, based on the six-year statute of limitations, 28 U.S.C. § 2401 (1978). The Court of Appeals for the Fifth Circuit reversed, holding that an action for review of a decision of a military board such as the ABCMR and BCNR accrues at a different time than an action directly challenging the circumstances of a discharge. The Fifth Circuit found that review of the ABCMR decision was timely. We agree with the Fifth Circuit that the cause of action for review under the arbitrary and capricious standard of the military board’s decision in a non-monetary case accrues at the time of the unfavorable ruling by the BCNR. Accord, Schmidt v. United States, 13 M.L.R. 2075 (N.D.Cal.1984); Kaiser v. Secretary of Navy, 525 F.Supp. 1226 (D.Colo.1981); Mulvaney v. Stetson, 470 F.Supp. 725 (N.D.Ill.1979). The BCNR has cited numerous cases for the proposition that the cause of action accrues at the time of discharge. We have examined these cases and find them to be distinguishable. The instant case is not a pay case. Counsel for Dougherty specifically acknowledged, both in the district court and in oral argument before this court, that Dougherty is not seeking monetary damages. The suit is merely to change the status of the discharge. The equitable considerations governing a corrective action are quite different than those governing a monetary action. For example, there is no danger of accumulating damages by delaying bringing a corrective action. Since the instant case is not an action for monetary damages, it is unnecessary for us to analyze and reconcile the cases for monetary damages. We have not overlooked Walters v. Secretary of Defense, 725 F.2d 107 (D.C.Cir. 1983)," }, { "docid": "16193102", "title": "", "text": "Ortiz v. Secretary of Defense, 41 F.3d 738 (D.C.Cir.1994); Blassingame v. Secretary of the Navy, 811 F.2d 65, 70 (2d Cir.1987); Smith v. Marsh, 787 F.2d 510 (10th Cir.1986); Dougherty v. U.S. Navy Bd. for Corr. of Naval Records, 784 F.2d 499 (3d Cir.1986); and Geyen v. Marsh, 775 F.2d 1303 (5th Cir.1985). The cases on which Mr. Martinez relies were all nonstatutory review actions under the APA seeking equitable relief, not Tucker Act actions for money. Each involved a request for an upgrade in the classification of the plaintiffs discharge, in most instances from “undesirable” to “honorable.” Because the plaintiffs did not seek monetary relief, and thus had no Tucker Act remedy, they were able to invoke the APA’s waiver of sovereign immunity for actions against the United States “seeking relief other than money damages,” 5 U.S.C. § 702, and they were able to challenge the correction boards’ decisions as they were “adversely affected or aggrieved,” id, by “final agency action for which there is no other adequate remedy in a court,” 5 U.S.C. § 704. See Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230-31 n. 4, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). As challenges to final agency action, the APA actions challenged the board decisions that denied requests for changes in discharge status; they did not challenge the underlying discharges themselves. Because the APA actions did not turn on a claim for money, the actions could be said to accrue at the time of the challenged agency action — the action of the correction board in question — rather than at the time of the action that caused the plaintiff monetary loss — the discharge itself.- Indeed, the very cases on- which Mr. Martinez relies recognized the distinction between an APA action to review a correction board decision denying an upgrade in discharge status and a back pay suit challenging the discharge itself under the Tucker Act. See Blassingame, 811 F.2d at 72; Smith, 787 F.2d at 511-12; Dougherty, 784 F.2d at 501-02 & n. 10; Geyen, 775 F.2d at 1308-09; see also Ballenger" }, { "docid": "14295976", "title": "", "text": "mandatory. In no case could such period exceed the 30-day period during which a requester may file an administrative appeal to the OPIA, 28 C.F.R. § 16.8(a) (1986), plus the 20-working-day period allotted for OPIA processing of the appeal. On the facts of this case, it could not exceed six weeks: the two weeks that it took appellant to file his appeal with the OPIA (on June 29,1979) plus the 20-working-day period allotted for OPIA processing. Tolling for so brief a period would not be enough here. For their position that the statute of limitations is tolled from the date it accrues until final administrative disposition, amicus and appellant collectively advance three central arguments, each of which we reject. First, appellant cites dicta in cases from other circuits for the proposition that pursuit of any administrative remedy tolls § 2401(a). See Geyen v. Marsh, 775 F.2d 1303, 1307-08 (5th Cir.1985); Nichols v. Hughes, 721 F.2d 657, 660 (9th Cir.1983); Mosley v. Secretary of the Navy, 522 F.Supp. 1165, 1167 & n. 5 (E.D.Pa.1981), aff’d without published opinion, 688 F.2d 823 (3d Cir.1982). All three cases involved the timeliness of a cause of action challenging the plaintiff’s discharge from the armed forces. The first two of those cases explicitly stated, see Geyen, 775 F.2d at 1306, or assumed for the sake of argument, see Nichols, 721 F.2d at 660, that the administrative appeals in question were ones whose availability or pendency would bar suit. They therefore say nothing about administrative consideration that obviously does not bar suit (except possibly for the brief period described above). The third case merely assumed for the sake of argument that the statute of limitations should be tolled for the two-year period in which the plaintiff pursued an administrative appeal that was (according to the court) permissive, 522 F.Supp. at 1167, but the assumption was dictum as the tolling did not in any event overcome the bar of the statute. Id. Second, both appellant and amicus rely on Burnett v. New York Central Railroad Co., 380 U.S. 424, 427-29, 85 S.Ct. 1050, 1054-55, 13 L.Ed.2d 941" }, { "docid": "16193101", "title": "", "text": "the point outside the context of the correction boards, consider the following hypothetical case: Suppose a government agency provided an additional option through which an aggrieved party could seek relief from agency action, for example by giving a particular agency official the power to overrule agency decisions and grant monetary relief to private claimants. The creation of such an office would give claimants an additional, permissive option in seeking to vindicate their claims against the agency. But if the agency official denied a particular claim, it would not make sense to say that the denial would give rise to a second accrual of the original claim, so that the statute of limitations for a Tucker Act action on that claim would begin anew as of the date of the agency official’s denial. Hwrick simply applies that principle to claims submitted to the correction boards, and, in our view, properly so. B Mr. Martinez argues that this court’s decision in Hurick is contrary to the decisions of several other courts of appeals. In particular, he cites Ortiz v. Secretary of Defense, 41 F.3d 738 (D.C.Cir.1994); Blassingame v. Secretary of the Navy, 811 F.2d 65, 70 (2d Cir.1987); Smith v. Marsh, 787 F.2d 510 (10th Cir.1986); Dougherty v. U.S. Navy Bd. for Corr. of Naval Records, 784 F.2d 499 (3d Cir.1986); and Geyen v. Marsh, 775 F.2d 1303 (5th Cir.1985). The cases on which Mr. Martinez relies were all nonstatutory review actions under the APA seeking equitable relief, not Tucker Act actions for money. Each involved a request for an upgrade in the classification of the plaintiffs discharge, in most instances from “undesirable” to “honorable.” Because the plaintiffs did not seek monetary relief, and thus had no Tucker Act remedy, they were able to invoke the APA’s waiver of sovereign immunity for actions against the United States “seeking relief other than money damages,” 5 U.S.C. § 702, and they were able to challenge the correction boards’ decisions as they were “adversely affected or aggrieved,” id, by “final agency action for which there is no other adequate remedy in a court,” 5 U.S.C." }, { "docid": "16791910", "title": "", "text": "United States as a defendant. Amicus apparently made these same arguments without success to the Court of Appeals for the Fifth Circuit in Geyen v. Marsh, 775 F.2d at 1306-07. We agree with and adopt the Fifth Circuit's thoughtful analysis of these arguments. Briefly, the Fifth Circuit noted that several circuits have rejected the claim that section 2401(a) applies only to Tucker Act actions. Further, the court found that the merger of law and equity assured that section 2401(a) covers both legal and equitable actions. As to the claim that the United States must be named as a defendant, the court noted that courts have discarded the fiction that an action alleging unlawful conduct by a federal official, or as in this case by an official and an agency, is not an action against the United States. See id. The central issue regarding the running of the statute of limitations is when Blassingame’s right of action to contest the Correction Board decision accrued. Blassingame argues that this right accrued when that decision was rendered. If we agree with Blassingame on this point, then this suit, based on the Correction Board decision in 1984, is within the six-year limitation period. The government’s view, which prevailed in the district court, is that the limitation period runs from the time of the underlying discharge in 1971 since, according to the government, Blassingame ultimately is contesting the propriety of that action. The government therefore maintains that this suit filed in 1984 is barred by the statute of limitations. The question of when the right to obtain judicial review of a Correction Board decision accrues under 28 U.S.C. § 2401(a) is still open in this circuit. Several other circuits have recently faced this same question. The Third, Fifth and Tenth Circuits have adopted the view advanced by Blassingame. See Dougherty v. United States Navy Bd. for Correction of Naval Records, 784 F.2d 499 (3d Cir.1986); Geyen v. Marsh, 775 F.2d 1303 (5th Cir.1985), reh’g denied, 782 F.2d 1351 (1986); Smith v. Marsh, 787 F.2d 510 (10th Cir.1986); see also Walters v. Secretary of Defense, 737" }, { "docid": "569623", "title": "", "text": "indication in the record that Nichols initiated any more administrative proceedings in the years that followed. C. Equitable Tolling Because of BGNR’s 1977 Decision Nichols argues that the 1977 decision of the Board for Correction of Naval Records (BCNR) either created a new cause of action in 1977 or suspended the running of the statute of limitation. Both claims are without merit. First, although claims filed with the BCNR must be filed within three years, BCNR has explicit statutory discretion to excuse a late filing when “in the interest of justice.” 10 U.S.C. § 1552(b). BCNR’s decision to entertain Nichols’ late claim cannot suspend the six-year period of 28 U.S.C. § 2401(a) because BCNR has no comparable authority to excuse lateness under that statute. Next, no new cause of action accrued in 1977. Nichols does not challenge the BCNR decision upgrading the status of his discharge as arbitrary or capricious. To the extent he challenges the BCNR decision for failing to order his reinstatement, his challenge is precluded since he failed to ask for that relief in his petition to the BCNR. Bonen v. United States, 666 F.2d 536, 539-40 (Ct.Cl.1981), cert. denied, 456 U.S. 991, 102 S.Ct. 2273, 73 L.Ed.2d 1286 (1982); Homcy v. United States, 536 F.2d 360, 364-65, 210 Ct.Cl. 332, cert. denied, 429 U.S. 984, 97 S.Ct. 502, 50 L.Ed.2d 595 (1976). The judgment of the district court is AFFIRMED." }, { "docid": "18757622", "title": "", "text": "the unfavorable ruling by the BCNR. Accord, Schmidt v. United States, 13 M.L.R. 2075 (N.D.Cal.1984); Kaiser v. Secretary of Navy, 525 F.Supp. 1226 (D.Colo.1981); Mulvaney v. Stetson, 470 F.Supp. 725 (N.D.Ill.1979). The BCNR has cited numerous cases for the proposition that the cause of action accrues at the time of discharge. We have examined these cases and find them to be distinguishable. The instant case is not a pay case. Counsel for Dougherty specifically acknowledged, both in the district court and in oral argument before this court, that Dougherty is not seeking monetary damages. The suit is merely to change the status of the discharge. The equitable considerations governing a corrective action are quite different than those governing a monetary action. For example, there is no danger of accumulating damages by delaying bringing a corrective action. Since the instant case is not an action for monetary damages, it is unnecessary for us to analyze and reconcile the cases for monetary damages. We have not overlooked Walters v. Secretary of Defense, 725 F.2d 107 (D.C.Cir. 1983), where the Court of Appeals for the District of Columbia Circuit found a class action seeking to upgrade discharges barred by the six-year statute of limitations. In that case, review of the discharge itself was sought and not review of any military correction board action. The court said: “We need not and do not decide whether, had a named plaintiff sought and received a final decision from a discharge review board, the statute of limitations could have been tolled in any way.” Id. at 115. Similarly, in Nichols v. Hughes, 721 F.2d 657 (9th Cir.1983), the court found that the plaintiff’s cause of action had accrued at the time of discharge and was thus time-barred. While plaintiff had sought and obtained relief from the BCNR, the district court action there under review challenged the original discharge and not the BCNR decision. The plaintiff was not challenging the BCNR action because he had received a favorable ruling from that Board. These two cases are distinguishable from this record because they challenged the discharge itself, while the" }, { "docid": "16193154", "title": "", "text": "such review. Blassingame, 811 F.2d at 71. The court pointed out that the Government’s view to the contrary would in some circumstances preclude altogether judicial review of Correction Board action. That circumstance, the court noted, could occur in a number of ways. For example, by statute veterans have fifteen years to take certain discharge cases to the Discharge Review Board, 10 U.S.C. § 1553(a), and three years after that to appeal the Review Board’s decision to the Correction Board, 10 U.S.C. § 1552(b). Under the Government’s view, a veteran whose board reviews were completed within six years from the date of discharge could obtain judicial review, but a veteran whose board reviews extended beyond that would be denied any judicial review. As the court emphasized, that created disparate results, and was inconsistent with Harmon in that there was no reason to think Congress intended to preclude judicial review of agency action in that fashion. Blassingame, 811 F.2d at 71-72. The Second Circuit took particular note of the Federal Circuit’s contrary position in Hurick, saying: Although we acknowledge the vast experience of the Federal Circuit and its predecessor regarding challenges by veterans to their discharges, we note that the leading case relied on by that circuit, Friedman was decided in 1962, before it became clearer over the intervening years that there is a presumption in favor of judicial review of agency action. Id. at 71. In reaching its conclusion that the cause of action accrues at the time of the Correction Board decision, not at the time of the underlying discharge, the Second Circuit followed with approval the same conclusion reached in similar cases in the Third, Fifth, and Tenth Circuits. See Dougherty v. United States Navy Bd. for Corr. of Naval Records, 784 F.2d 499 (3d Cir.1986); Geyen v. Marsh, 775 F.2d 1303 (5th Cir.1985); Smith v. Marsh, 787 F.2d 510 (10th Cir.1986). No circuit other than ours follows Hurick. The decision of the Second Circuit, citing that of the Fifth, particularly noted that review of a Correction Board decision should be distinct from direct review of the underlying discharge" }, { "docid": "16791911", "title": "", "text": "we agree with Blassingame on this point, then this suit, based on the Correction Board decision in 1984, is within the six-year limitation period. The government’s view, which prevailed in the district court, is that the limitation period runs from the time of the underlying discharge in 1971 since, according to the government, Blassingame ultimately is contesting the propriety of that action. The government therefore maintains that this suit filed in 1984 is barred by the statute of limitations. The question of when the right to obtain judicial review of a Correction Board decision accrues under 28 U.S.C. § 2401(a) is still open in this circuit. Several other circuits have recently faced this same question. The Third, Fifth and Tenth Circuits have adopted the view advanced by Blassingame. See Dougherty v. United States Navy Bd. for Correction of Naval Records, 784 F.2d 499 (3d Cir.1986); Geyen v. Marsh, 775 F.2d 1303 (5th Cir.1985), reh’g denied, 782 F.2d 1351 (1986); Smith v. Marsh, 787 F.2d 510 (10th Cir.1986); see also Walters v. Secretary of Defense, 737 F.2d 1038 (D.C.Cir.1984) (denying rehearing in banc) (Wald, Mikva, JJ., concurring). The Federal Circuit favors the view urged by the government. See Hurick v. Lehman, 782 F.2d 984 (Fed.Cir.1986). We agree with the view taken by the Third, Fifth and Tenth Circuits. The question of when the right to obtain judicial review of a Correction Board decision accrues is a difficult one. The government finds support for its position in the historical development of Review Boards and Correction Boards. Before Congress mandated the creation of Review Boards in 1944 and Correction Boards in 1946, a vet eran could upgrade his discharge only through a private bill for relief through Congress. Such bills were not subject to judicial review, except for constitutionality. See Harmon, 355 U.S. at 584-85, 78 S.Ct. at 436-37 (Clark, J., dissenting); Friedman v. United States, 310 F.2d 381, 404, 159 Ct.Cl. 1 (1962), cert. denied, 373 U.S. 932, 83 S.Ct. 1540, 10 L.Ed.2d 691 (1963). The government argues that since the relief provided by Correction Boards is a substitute for private bills" }, { "docid": "569619", "title": "", "text": "1957 discharge was void and an order reinstating him into the Navy. The district court held that his action was barred by the applicable statute of limitation, and entered judgment in favor of the Navy. II. DISCUSSION Nichols does not dispute the applicability of the six-year limitation period of 28 U.S.C. § 2401(a) to his claims. See Saffron v. Department of the Navy, 561 F.2d 938, 941-46 (D.C.Cir.1977), cert. denied, 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780 (1978); Werner v. United States, 188 F.2d 266, 268 (9th Cir.1951) (§ 2401(a) applies to equitable claims against the government). Rather, he advances three arguments for finding that the application of the statute to his case does not bar his claims. First, he contends that his cause of action did not accrue more than six years ago. Second, he maintains that administrative proceedings tolled the statute. Third, he argues that the Board for Correction of Naval Records’ action in 1977 created a new cause of action for which the limitation period has not yet run. We address these arguments in turn. A. Accrual of the Cause of Action Nichols seeks a declaration that his 1957 discharge from the Navy was void on the grounds that Navy officials (1) decided to discharge him before undertaking a proper investigation; (2) relied on an unsigned statement of another enlisted man as evidence of Nichols’ homosexuality, where such reliance was contrary to Navy regulations; (3) coerced him into signing incriminating statements; (4) denied him legal counsel; (5) denied him information concerning the witnesses who accused him of homosexuality; (6) searched his personal belongings without cause; and (7) arbitrarily discharged him merely because of homosexuality. In federal court, a cause of action accrues when an injury is discovered or should have been discovered through the exercise of reasonable diligence. NLRB v. Don Burgess Construction Corp., 596 F.2d 378, 382 (9th Cir.), cert. denied, 444 U.S. 940, 100 S.Ct. 293, 62 L.Ed.2d 306 (1979); see Urie v. Thompson, 337 U.S. 163, 169-71, 69 S.Ct. 1018, 1024-1025, 93 L.Ed. 1282 (1949). Ordinarily, a cause of action for wrongful" }, { "docid": "16193103", "title": "", "text": "§ 704. See Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230-31 n. 4, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). As challenges to final agency action, the APA actions challenged the board decisions that denied requests for changes in discharge status; they did not challenge the underlying discharges themselves. Because the APA actions did not turn on a claim for money, the actions could be said to accrue at the time of the challenged agency action — the action of the correction board in question — rather than at the time of the action that caused the plaintiff monetary loss — the discharge itself.- Indeed, the very cases on- which Mr. Martinez relies recognized the distinction between an APA action to review a correction board decision denying an upgrade in discharge status and a back pay suit challenging the discharge itself under the Tucker Act. See Blassingame, 811 F.2d at 72; Smith, 787 F.2d at 511-12; Dougherty, 784 F.2d at 501-02 & n. 10; Geyen, 775 F.2d at 1308-09; see also Ballenger v. Marsh, 708 F.2d 349 (8th Cir.1983) (expressly distinguishing between back pay claims under the Tucker Act and a claim for “corrective” action upgrading a discharge from dishonorable to honorable). The difference is important. The cause of action in Mr. Martinez’s Tucker Act suit was for the denial of money; that cause of action therefore accrued when he was separated from - active duty and his monetary injury began. His cause of action did not accrue when the Correction Board declined to overturn his separation, because that action did not cause him monetary injury, but merely failed to remedy the injury he had previously suffered. Because the Court of Federal Claims lacks APA jurisdiction, see Murphy v. United States, 993 F.2d 871, 874 (Fed.Cir.1993), the trial court was not empowered to treat this case as a nonmonetary challenge to final agency action by the Correction Board; under the Tucker Act, the single cause of action necessarily arose at the time of the action that had monetary consequences for Mr. Martinez, and that was the date" }, { "docid": "6502588", "title": "", "text": "that provision by virtue of 28 U.S.C. § 1343(a)(4) (1988). Such an action cannot be sustained here, however, because this court has not been given an equivalent jurisdiction. See Sanders v. United States, 32 Fed.Cl. 573, 576 (1995); Anderson v. United States, 22 Cl.Ct. 178, 179 n. 2 (1990), aff'd, 937 F.2d 623 (Fed.Cir.1991). This aspect of the complaint fails for lack of subject matter jurisdiction. The balance of the complaint is also fatally flawed for reasons outlined by defendant. The plaintiff is barred by the six-year limitations period. See 28 U.S.C. § 2501. That section bars a claim for relief if it is not “filed within six years after such claim first accrues.” Private Blassingame was discharged in 1971. His cause of action for recovery of back pay for improper discharge, if he had one, arose at the point of discharge. Hurick v. Lehman, 782 F.2d 984 (Fed.Cir.1986); Kirby v. United States, 201 Ct.Cl. 527, 531-32, 1973 WL 21341 (1973), cert. denied, 417 U.S. 919, 94 S.Ct. 2626, 41 L.Ed.2d 224 (1974); Powers v. United States, 198 Ct.Cl. 995, 1972 WL 5173 (1972). Because more than six years elapsed between his discharge and filing of the complaint, the action is barred. Resort to elective administrative remedies, such as the BCNR, does not toll the running of the statute of limitations in military pay eases. D'Andrea v. United States, 27 Fed.Cl. 612, 614, aff'd, 6 F.3d 786 (Fed.Cir.1993); Brundage v. United States, 205 Ct.Cl. 502, 507, 504 F.2d 1382, 1385 (1974), cert. denied, 421 U.S. 998, 95 S.Ct. 2395, 44 L.Ed.2d 665 (1975) (citing Cason v. United States, 200 Ct.Cl. 424, 432, 471 F.2d 1225, 1229 (1973)). Plaintiff attempts to avoid the limitations problem by arguing that a new cause of action arose upon correction of his records, as ordered by the Second Circuit. Mr. Blassingame asserts that he did not have a cognizable monetary claim against the United States until 1991, when the agency complied with the Second Circuit’s order to change his discharge status. This is not correct. To the extent the plaintiff was unlawfully deprived in 1971" }, { "docid": "18757620", "title": "", "text": "court is not the discharge itself but its treatment by the BCNR. Consequently, the case involves not a succession of witnesses who will seek to remember what happened nearly thirty years ago but, rather, an analysis of an administrative record to determine if a particular result is an arbitrary and capricious conclusion. The Supreme Court stated in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 861 (1967), that “a survey of our cases shows that judicial review of a final agency action by an aggrieved person will not be cut off unless there is a persuasive reason to believe that such was the purpose of Congress.” Id. at 140, 87 S.Ct. at 1511. In the instant case, the BCNR decided to waive the statute of limitations and address the merits of Dougherty’s claim. Having done so, given the facts and exigencies of this case, we see no persuasive reason to cut off judicial review of the 1984 administrative action of the BCNR. See Geyen v. Marsh, 775 F.2d 1303 (5th Cir.1985). While we know of no binding precedent, our decision is consistent with those of other courts faced with this issue. In Geyen v. Marsh, supra, plaintiff had been given an undesirable discharge by the Army in lieu of a court martial after going AWOL. Ten years later he petitioned the Army Board for Correction of Military Records (“ABCMR”). The ABCMR denied his claim and Geyen sought review in the district court. The district court dismissed, based on the six-year statute of limitations, 28 U.S.C. § 2401 (1978). The Court of Appeals for the Fifth Circuit reversed, holding that an action for review of a decision of a military board such as the ABCMR and BCNR accrues at a different time than an action directly challenging the circumstances of a discharge. The Fifth Circuit found that review of the ABCMR decision was timely. We agree with the Fifth Circuit that the cause of action for review under the arbitrary and capricious standard of the military board’s decision in a non-monetary case accrues at the time of" }, { "docid": "16193155", "title": "", "text": "we acknowledge the vast experience of the Federal Circuit and its predecessor regarding challenges by veterans to their discharges, we note that the leading case relied on by that circuit, Friedman was decided in 1962, before it became clearer over the intervening years that there is a presumption in favor of judicial review of agency action. Id. at 71. In reaching its conclusion that the cause of action accrues at the time of the Correction Board decision, not at the time of the underlying discharge, the Second Circuit followed with approval the same conclusion reached in similar cases in the Third, Fifth, and Tenth Circuits. See Dougherty v. United States Navy Bd. for Corr. of Naval Records, 784 F.2d 499 (3d Cir.1986); Geyen v. Marsh, 775 F.2d 1303 (5th Cir.1985); Smith v. Marsh, 787 F.2d 510 (10th Cir.1986). No circuit other than ours follows Hurick. The decision of the Second Circuit, citing that of the Fifth, particularly noted that review of a Correction Board decision should be distinct from direct review of the underlying discharge because, although the factual record may be similar, the focus of the former is on the action of the Correction Board rather than on that of the discharge officials. Blassingame, 811 F.2d at 72; Geyen, 775 F.2d at 1308-09. As in the case before us, the Correction Board may consider evidence not in the original record, 32 C.F.R. § 581.3(c)(2)(iii), and, in cases in which the veteran was required to apply first to a Discharge Review Board, it must also consider policy and procedure changes implemented subsequent to the discharge. Geyen, 775 F.2d at 1308-09 (citing 32 C.F.R. § 70.9(c)(1), which provides Army Discharge Review Board standards); see also Blassingame, 811 F.2d at 72-73 (citing 32 C.F.R. § 724.903, which provides Naval Discharge Review Board standards). The issue for judicial review as these courts see it is whether, on the factual record before the Correction Board, its decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706; Blassingame, 811 F.2d at 72; Geyen, 775 F.2d at" }, { "docid": "6502587", "title": "", "text": "finding that the Navy’s failure to follow certain procedures invalidated the discharge classification. It remanded, the action to the BCNR. 866 F.2d 556 (1989). The BCNR failed to take its cue from the appellate court and did not change Mr. Blassingame’s records. It required a writ of mandamus from the Second Circuit to the BCNR to eventually get Mr. Blassingame’s records corrected to reflect an honorable discharge. Mr. Blassingame claims that he is entitled to back pay and other monetary relief as a result of the correction of his military record. He also brings a civil rights claim under 42 U.S.C. § 1983 (1988) asserting that his dismissal by the Marine Corps with a less-than-honorable classification, along with the failure of the Navy to swiftly correct the defect, was racially motivated and caused psychological and emotional damage. He seeks a payment of $15,000,000 as compensation. DISCUSSION The court can begin with the section 1983 claim. Section 1983 is not a jurisdiction-granting statute. District courts are given jurisdiction to hear claims for damages for violation of that provision by virtue of 28 U.S.C. § 1343(a)(4) (1988). Such an action cannot be sustained here, however, because this court has not been given an equivalent jurisdiction. See Sanders v. United States, 32 Fed.Cl. 573, 576 (1995); Anderson v. United States, 22 Cl.Ct. 178, 179 n. 2 (1990), aff'd, 937 F.2d 623 (Fed.Cir.1991). This aspect of the complaint fails for lack of subject matter jurisdiction. The balance of the complaint is also fatally flawed for reasons outlined by defendant. The plaintiff is barred by the six-year limitations period. See 28 U.S.C. § 2501. That section bars a claim for relief if it is not “filed within six years after such claim first accrues.” Private Blassingame was discharged in 1971. His cause of action for recovery of back pay for improper discharge, if he had one, arose at the point of discharge. Hurick v. Lehman, 782 F.2d 984 (Fed.Cir.1986); Kirby v. United States, 201 Ct.Cl. 527, 531-32, 1973 WL 21341 (1973), cert. denied, 417 U.S. 919, 94 S.Ct. 2626, 41 L.Ed.2d 224 (1974); Powers v." }, { "docid": "16193065", "title": "", "text": "Correction Board. Mr. Martinez therefore urged the court to reconsider Hurick. After oral argument before the panel, the full court granted en banc review, ordered the parties to file new briefs, and invited the parties to address the question whether Hurick should be overruled. We now reaffirm Hurick v. Lehman, and we affirm the order of the trial court dismissing the complaint as time-barred. II As the parties acknowledge, the facts of the Hurick case closely parallel the facts of this case in all material respects. Mr. Hurick was discharged from the Navy for unsuitability. He twice sought relief from the Board for the Correction of Naval Records, challenging his discharge as unlawful. The Board denied relief. Following the Correction Board’s second ruling, and seven years after his discharge, Mr. Hurick filed an action in district court based in part on the “Little Tucker Act,” 28 U.S.C. § 1346(a)(2). The district court held that the six-year statute of limitations for suits against the United States barred the action, and this court affirmed. Like Mr. Martinez, Mr. Hurick sought both reinstatement and an award of the pay he lost as a result of his discharge. Based on a long line of decisions from this court and its predecessor, the Court of Claims, this court held that Mr. Hurick’s claim accrued as of the date of his discharge. Hurick, 782 F.2d at 986. Accordingly, the statute of limitations ran from that date and expired six years later. The court rejected Mr. Hurick’s argument that the statute of limitations was tolled for the period in which his applications for relief were pending before the Board for the Correction of Naval Records (“BCNR”). The court explained that resort to the BCNR was a permissive remedy, not a mandatory precondition to filing suit. Accordingly, the court held that the proceedings before the BCNR did not suspend the running of the limitations period. Id. at 987. With respect to Mr. Hurick’s argument that he was not challenging his original discharge, but was challenging only the refusal of the BCNR to give him relief from the discharge," } ]

[ { "docid": "23461581", "title": "", "text": "yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ ” A “very tentative classification of categories in which habeas corpus has not been deemed beyond the power of federal courts to entertain” is to be found in Mr. Justice Frankfurter’s dissenting opinion in Sunal v. Large, 332 U.S. at pages 185 and 186, 67 S.Ct. at page 1594. No useful purpose would be served by listing those categories here. It will suffice to say that in view of the emphasis in Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962), on the importance and value of the right of appeal in criminal cases, and at least the implications of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), we think loss of the right to appeal because of deception by counsel belongs in the category, for in that situation the need for the remedy afforded by motion under § 2255 is all too apparent. See Dodd v. United States, 321 F.2d 240 (C. A.9, 1963). That is to say, we think a federal prisoner who has been effectively deprived of his right to appeal by deception practiced upon him by his counsel is entitled to present by motion under § 2255 errors ordinarily cognizable only on appeal. Let it be emphasized at this point, however, that it by no means follows that a bare allegation such as that made in the ease at bar automatically entitles a prisoner who has not appealed to what is in effect an appeal with the possibility of a new trial perhaps resulting in acquittal. Prison gates do not swing open so easily. The path to appellate relief by this route is steep and narrow.. In the first place applications for relief such as this must be made promptly. It will not do for a prisoner to wait until government witnesses have become unavailable, as by death, serious illness or absence from the country, or until the memory of available government witnesses has faded. It will" } ]

[ { "docid": "16071713", "title": "", "text": "BELL, Circuit Judge. Appellant sought an out of time appeal in the District Court through the medium of a motion filed under 28 U.S.C.A. § 2255 to vacate the judgment and sentence theretofore imposed upon him. The judgment of conviction was based on an indictment charging interstate transportation of a forged security in violation of 18 U.S.C.A. § 2314. It was entered on a jury verdict of guilty, and sentence was imposed on October 9, 1962. A good portion of appellant’s time since that date has been spent in attempting to appeal his case. The question presented turns one way or another on the right to counsel on appeal. It is settled that an appeal from the judgment of a federal District Court is a matter of right. Coppedge v. United States, 1962, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21. It is also settled that an indigent criminal defendant’s right to counsel extends through the period for taking an appeal. Miller v. United States, 5 Cir., 1966, 356 F.2d 63; Boruff v. United States, 5 Cir., 1962, 310 F.2d 918. On the other hand, a criminal defendant with retained counsel must look to his counsel for guidance in taking the appeal. His right of appeal is lost by a failure to timely file a notice of appeal unless he can establish that he lost his right to appeal through the fraud and deceit of his retained counsel. Camp v. United States, 5 Cir., 1965, 352 F.2d 800; Bray v. United States, 5 Cir., 1966, 370 F.2d 44. The fraud and deceit of counsel referred to in these cases, as we noted in Camp, is established when it is shown that retained counsel has breached his legal duty to faithfully represent the defendant. The facts of this case demonstrate that appellant was represented on his trial by retained counsel. His counsel told him that there were substantial grounds for an appeal and that he would appeal the case upon being paid a fee and also upon receiving an advance for costs. The fee was never paid, no costs were" }, { "docid": "23110699", "title": "", "text": "is charged, following conviction and sentence, with having failed to provide the effective aid to which the Supreme Court, beginning with Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 has said every federally tried accused person is entitled. We begin with several basic principles. The first of these is that every convicted person has an absolute right to an appeal. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L. Ed.2d 21. Where an accused is represented by counsel appointed by the court, the Federal Rules of Criminal Procedure undertake to cover the situation that faces such a convicted person when he wishes to file an appeal. This rule provides as follows: “After imposing sentence in a case that has gone to trial on a plea of not guilty, the court, shall advise the defendant of his right to appeal and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of the defendant.” Federal Rules of Criminal Procedure, Rule 32(a) (2). In such a situation, and especially now in light of the fact that both appointed trial counsel and appointed appellate counsel are at least partially compensated under the criminal justice act, the likelihood of an accused, represented by court appointed counsel, failing to have his appeal noticed is remote. Nevertheless, when it does occur, and where the trial ends with appointed counsel failing to take the action desired by the accused by filing a notice of appeal and the convicted person is therefore actually without the aid of counsel when the statutory time of appeal expires, this court has had no difficulty in remedying this defect by permitting a late filing. Boruff v. U. S., (5 Cir., 1962), 310 F.2d 918. See Lyles v. U. S., (5th Cir., 1965) 341 F.2d 917. When the failure to file the notice of appeal occurs where the trial" }, { "docid": "6069510", "title": "", "text": "from joint representation may well raise serious questions as to discrimination between indigents and non-indigents, who may retain separate counsel at will. Cf. Coppedge v. United States, 369 U.S. 438, 446-448, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Douglas v. State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Note, Equal Protection and the Indigent Defendant: Griffin and Its Progeny, 16 Stan.L.Rev. 394, 405-409 1964). But cf. United States v. Dardi, 2 Cir., 330 F.2d 316, 335, cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964). However, since appellant was not even advised of his rights under § 3006A (b) and Lebrón and since, as we shall discuss shortly, this led to appellant’s prejudice, we need not delve into these broader questions. . See, e. g., Lott v. United States, 5 Cir., 218 F.2d 675 (1955); United States v. Burkeen, 6 Cir., 355 F.2d 241, cert. denied, sub nom. Matlock v. United States, 384 U.S. 957, 86 S.Ct. 1582, 16 L. Ed.2d 553 (1966); Lugo v. United States, 9 Cir., 350 F.2d 858 (1965). . See, e. g., Glasser v. United States, 315 U.S. 60, 75-76, 62 S.Ct. 457 (1942); United States v. Dardi, supra Note 6; Sawyer v. Brough, 4 Cir., 358 F.2d 70 (1966); Craig v. United States, supra Note 3; Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962). And see Waltz, Inadequacy of Trial Defense Representation as a Ground for Post-Conviction Relief in Criminal Cases, 59 Nw.U.L.Rev. 289, 334 (1963); Note, The Right to Effective Counsel in Criminal Cases, 9 Vand.L.Rev. 1920, 1926 (1965). . Compare Campbell v. United States, supra Note 3, with Lebron v. United States, supra Note 4; Wynn v. United States, 107 U.S.App.D.C. 190, 275 F.2d 648 (1960). BAZELON, Chief Judge (dissenting): If this were a case of first impression, I would seriously consider reversing the conviction without any showing of prejudice. An absolute rule requiring separate lawyers (unless there is an intelligent waiver)" }, { "docid": "21496056", "title": "", "text": "neglect of counsel, or have required a showing of plain error. In the first group are Dennis v. United States, 177 F.2d 195 (4th Cir.); Birtch v. United States, 173 F.2d 316 (4th Cir.) ; Moore v. Aderhold, 108 F.2d 729 (10th Cir.), and Crowe v. United States, 175 F.2d 799 (4th Cir.). The court in Mitchell v. United States, 103 U.S.App.D.C. 97, 254 F.2d 954, considered a failure to appeal, and an effective assistance of counsel argument under circumstances where it appeared that an appeal was not perfected because the retained attorney was not paid. The court held that such refusal by the attorney to appeal was not ground for vacating the sentence. The court cited Dennis v. United States, supra, but qualified it to the extent that a failure to appeal would not be ground for vacating a sentence if no plain error was shown. The court then found that there was no plain error in the original trial. Other cases do not refuse relief entirely but require a showing of plain error to justify consideration of renewing the right to appeal.' This group includes Mitchell v. United States, supra, and also Dodd v. United States, 321 F.2d 240 (9th Cir.), where the court specifically sets up the plain error requirement in a reversal and remand to the trial court. See also Miller v. United States, Ninth Circuit, 1964, 339 F.2d 581. In Boruff v. United States, 310 F.2d 918 (5th Cir.), the accused was represented by appointed counsel who apparently assumed that his duties terminated on the sentencing of accused, and no further representation was undertaken. The court there considered the non-representation of accused during the ten day period, and held that his right of counsel extended through the exercise by him of his right to appeal. The court in the cited case also considered possible errors in the original proceedings, and actually held that venue had been improperly laid as advanced by the appellant as an error in the trial proceedings. Thus the court actually used the plain error test. We have recently considered in several" }, { "docid": "22318175", "title": "", "text": "his application, but the Government may defeat relief by showing that an appeal would be futile. Desmond v. United States, 333 F. 2d 378 (1964). Both petitioner and the Government attempt to find support in the position of the Tenth Circuit. Hannigan v. United States, 341 F. 2d 587 (1965). The Fifth, Sixth, Seventh, Eighth, and District of Columbia Circuits do not require any showing about the issues to be raised on appeal. Camp v. United States, 352 F. 2d 800 (C. A. 5th Cir. 1965); United States v. Smith, 387 F. 2d 268 (C. A. 6th Cir. 1967); Calland v. United States, 323 F. 2d 405 (C. A. 7th Cir. 1963); Williams v. United States, 402 F. 2d 548 (C. A. 8th Cir. 1968); Dillane v. United States, 121 U. S. App. D. C. 354, 350 F. 2d 732 (1965). Rule 37 (a)(2) provided: “When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant.” This provision has since been transferred to Rule 32 (a) (2). It now applies to defendants going to trial on a plea of not guilty, whether or not they are represented by counsel. The problem of determining whether to give notice to a person represented at trial, but who may not be represented on appeal, will therefore not recur. Me. Justice Harlan, concurring in part and dissenting in part. I agree with Part I of the Court’s opinion, but cannot subscribe to Part II, in which the Court reinstates petitioner’s right to appeal without further proceedings below. In taking this course I think the Court has been too insensitive to what, on this record, is due the trial judge, petitioner’s trial counsel, and the orderly administration of the criminal process. In my opinion, this record does not show that petitioner was wrongfully denied an opportunity to appeal. It appears from the record that immediately following petitioner’s sentencing his lawyer indicated" }, { "docid": "13030068", "title": "", "text": "United States, 333 F.2d 378 (1st Cir. 1964); Boruff v. United States, 310 F.2d 918 (5th Cir. 1962); Calland v. United States, 323 F.2d 405 (7th Cir. 1963); Dodd v. United States, 321 F.2d 240 (9th Cir. 1963). Cf. Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). Within our own circuit there has been a comparable disparity of approach. Compare Paulding v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964), with Carrell v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964). In the record before us there appear to be allegations that appellant’s counsel, retained for his defense at the trial, never apprised him of his right to file a notice of appeal, or of the time within which that right must be exercised. If true, and if unexplained, this impresses us as such an extraordinary inattention to a client’s interests as to amount to ineffective assistance of counsel cognizable under Section 2255. A motion under that statute containing such' allegations, and otherwise entertainable by the court, would entitle appellant to a hearing. If the court should find the facts to be as alleged, it should, by the expedient of vacating and resen-tencing, restore appellant to the status of one on whom sentence has just been imposed and who has 10 days in which to institute a direct appeal. Whether there are in fact grounds for such an appeal seems to us a subject to which appellant is entitled to address himself once he has been restored to the aforementioned status. Affirmed. . Rule 37(a) (2) presently requires the court to inform a defendant not represented by counsel at the time of sentencing of his right to appeal; and the clerk, if then requested to do so by the defendant, must prepare and file a notice of appeal on his behalf. In the Second Preliminary Draft of Proposed Amendments to the Rules of Criminal Procedure for the United States District Courts (March 1964), prepared by the Advisory Committee on Criminal Rules of the Judicial Conference of the United States, this provision is" }, { "docid": "941361", "title": "", "text": "and intelligent waiver. Thus we conclude that appellant was never advised of his rights and did not waive his right to an appeal or to the assistance of counsel. Ill A GAP IS CREATED As noted, at the sentencing the trial judge did not advise the defendant concerning his appellate rights. After sentencing, appointed counsel abandoned the case, without apprising the defendant of the procedure for perfecting an appeal. Following his conviction the indigent defendant was left alone, uninformed, unadvised, and unrepresented. His right to an appeal was lost. The rules and practices of the federal criminal process had coalesced to create a gap in the system’s protection of an indigent defendant’s valid rights. The defendant in a federal criminal case may appeal his conviction as of right. Also on appeal an indigent defendant has the right to appointed counsel. Coppedge v. United States, 369 U. S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Smith v. Crouse, 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039 (1964). Under the facts of this case, we are compelled to the conclusion that the federal system itself effectively deprived appellant of his right to an appeal and of his right to have the assistance of counsel. Accordingly, the sentence imposed by the district court is vacated and the action is remanded for resentencing in keeping with the principles indicated herein as to legal representation and appropriate advice as to appellate rights. While the amended rules herein mentioned are not retroactive the concepts of due process and equal protection are adequate to fill the gap that previously existed. . Fed.Rule Crim.Proc. 37 (a) (2) provided: (2) Time for Taking Appeal. An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from, but if a motion for a new trial or in arrest of judgment has been made within the 10-day period an appeal from a judgment of conviction may be taken within 10 days after entry of the order denying the" }, { "docid": "13966460", "title": "", "text": "case is a matter of right. Coppedge v. United States, 1962, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21. It is also settled that the sentencing court has discretion to ascertain whether a petition under § 2255 presents a substantial question before granting a full evidentiary hearing. Sanders v. United States, 1963, 373 U.S. 1, 20-21, 83 S.Ct. 1068, 10 L.Ed.2d 148; and Moore v. United States, 5 Cir., 1964, 334 F.2d 25. With these fundamentals in mind we proceed to a consideration of the question presented by the supplemental motion. In Boruff v. United States, 5 Cir., 1962, 310 F.2d 918, we held that an indigent criminal defendant’s right to counsel extended through the period for taking an appeal. Then in two recent state prisoner habeas corpus cases we gave effect to the federal constitutional right to appellate counsel for indigents. Douglas v. People of State of California, 1963, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. See Pate v. Holman, 5 Cir., 1965, 341 F.2d 764, modified on rehearing, 343 F.2d 546; and Edge v. Wainwright, 5 Cir., 1965, 347 F.2d 190. We considered the same question in a case involving a federal prisoner in Lyles v. United States, 5 Cir., 1965, 341 F.2d 917. There we remanded for a determination by the District Court of whether the indigent appellant’s right to appeal had been frustrated. On the second appearance of the case, we pointed out that an indigent in federal court must be afforded counsel on appeal from a judgment of conviction unless it is judicially determined that his appeal is frivolous. 346 F.2d 789. We reversed the denial of relief without a hearing by the District Court. A hearing on remand was ordered on the allegation that appointed counsel misled appellant as to his right to counsel on appeal. The appellant in each of these cases was an indigent at the time in question. Thus they are not apposite as authorities for the position urged by the appellant here for he was represented by employed counsel of his choice. We have not in fact" }, { "docid": "13030067", "title": "", "text": "PER CURIAM: Although the procedural situation is somewhat confused because of the multiple and alternative nature of appellant’s motions in the District Court, what we consider to be before us is essentially an appeal from that court’s action in denying leave to appeal in forma pauperis because the petition was filed after the time had expired in which a notice of appeal from a criminal conviction may be filed. Rule 37(a) (2), Fed. R.Crim.P. There being no issue of fact as to the failure to file an appeal within the prescribed time, the District Court’s action was correct under United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960), and we affirm it. This affirmance is, however, without prejudice to appellant’s filing in due course a new motion under 28 U.S.C. § 2255 seeking the vacation and re-entry of his sentence. The reconciliation of Robinson with the seeming equities of the convicted defendant whose failure to appeal in the 10-day period is not his fault has elicited varying responses. Desmond v. United States, 333 F.2d 378 (1st Cir. 1964); Boruff v. United States, 310 F.2d 918 (5th Cir. 1962); Calland v. United States, 323 F.2d 405 (7th Cir. 1963); Dodd v. United States, 321 F.2d 240 (9th Cir. 1963). Cf. Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). Within our own circuit there has been a comparable disparity of approach. Compare Paulding v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964), with Carrell v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964). In the record before us there appear to be allegations that appellant’s counsel, retained for his defense at the trial, never apprised him of his right to file a notice of appeal, or of the time within which that right must be exercised. If true, and if unexplained, this impresses us as such an extraordinary inattention to a client’s interests as to amount to ineffective assistance of counsel cognizable under Section 2255. A motion under that statute containing such' allegations, and otherwise entertainable by the court," }, { "docid": "3971756", "title": "", "text": "his guilt, admitting the facts as charged and waiving all non-jurisdictional defects in the prior proceedings against him. Chambers v. Beto, 428 F.2d 791 (5 Cir. 1970); Howard v. United States, 420 F.2d 478 (5 Cir. 1970). A plea is not rendered involuntary because it was induced as a result of a plea bargaining situation. Schnautz v. Beto, 416 F.2d 214 (5 Cir. 1969); Cortez v. United States, 337 F.2d 699 (9 Cir. 1964). And, if an accused has counsel and relies on the best professional advice that counsel can give, he cannot later urge that his plea of guilty was due to counsel coercion. Schnautz v. Beto, supra. Petitioner alleges, however, that his counsel rendered ineffective assistance. Such a charge cannot be sustained unless it clearly appears well-grounded. It is necessary to show that the trial was a farce or a mockery of justice, or that the purported representation was only perfunctory, a sham, in bad faith, a pretense, or without adequate opportunity for preparation. Busby v. Holman, 356 F.2d 75 (5 Cir. 1966); Williams v. Beto, 354 F.2d 698 (5 Cir. 1965). The record in Petitioner’s case refutes this charge. Additionally, Petitioner complains that his eoun sel did not inform him of his right to appeal. There is no necessity to advise a defendant of any right to appeal after a guilty plea. Boyes v. United States, 354 F.2d 31 (5 Cir. 1965); Dillane v. United States, 121 U.S.App.D.C. 354, 350 F.2d 732 (D.C.App.1965). Petitioner further contends that his plea was involuntary, having been made out of ignorance and inadvertence due to the judge’s failure to comply with Rule 11 of the Federal Rules of Criminal Procedure and that he failed to satisfy himself that there was factual basis for the plea and that it was entered voluntarily, as required by McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). The Court has had prepared the transcript of Petitioner’s arraignment and sentencing, and such, together with a copy of the waiver and consent signed by him and approved by the Court, is made" }, { "docid": "14705991", "title": "", "text": "U.S.C. § 1915. In Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957), the Court held that a transcript, or some appropriate substitute, and appointed counsel must be furnished an indigent defendant for the purpose of enabling him to demonstrate that he is entitled to appeal in forma pauperis. The “good faith” provision of 28 U.S.C. § 1915 requires only that a non-frivolous ground of appeal be shown to exist, as appears from Johnson, supra, and Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529 (1957). Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958), emphasized the further requirement that leave to appeal in forma pauperis may not be denied until the indigent appellant has had effective assistance of counsel in his search for a non-frivolous issue, and that adequate representation entails active advocacy in an adversary proceeding, and not mere impartial evaluation and advice to the court as amicus curiae. The Court said (356 U.S. at 675, 78 S.Ct. at 975): If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account. If the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel’s evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied. In Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962), the Court discussed the subject of in forma pauperis appeals at length, and held that the burden is on the Govern ment to demonstrate that any issue presented by appellant is frivolous. Finally, in Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964), the Court held that a complete transcript must be made available by the Government to an indigent defendant seeking leave to appeal in forma pawperis who is represented by an attorney other than trial counsel. Four justices would have ruled that a complete transcript is required for all indigent appeals. There has" }, { "docid": "15410486", "title": "", "text": "the tardiness was excusable. . F.R.Crim.P. 37(a) (1). . United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947). But see Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). . United States v. Robinson, supra note 4. But see Dillane v. United States, 121 U.S.App.D.C. 354, 350 F.2d 732 (1965) ; Carrell v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964); Paulding v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964). . Petitioner’s affidavit served adequately as a notice of appeal, and if submitted in time conferred the jurisdiction essential to our entertaining the appeal he desires. See Belton v. United States, 104 U.S.App.D.C. 81, 84, 259 F.2d 811, 814 (en banc 1958); Shannon v. United States, 93 U.S.App.D.C. 4, 6-7, 206 F.2d 479, 481-482 (1953); Randolph v. Randolph, 91 U.S.App.D.C. 170, 198 F.2d 956 (1952); Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865 (1941). Cf. Kirksey v. United States, 94 U.S.App.D.C. 393, 219 F.2d 499 (1954), cert. denied 358 U.S. 848, 79 S.Ct. 74, 3 L.Ed.2d 82 (1958). . Advisory Committee’s Note to F.R.Crim.P. 37(a) (2) ¶ 5. . See Coppedge v. United States, 369 U.S. 438, 441-442, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). . F.R.Crim.P. 32(a) (2). . Ibid. . Unless the right is intelligently and effectively waived, the defendant must be represented by counsel when sentence is imposed. Mempa v. Rhay, 389 U.S. 128, 129, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Daniel v. United States, 107 U.S.App.D.C. 110, 112, 274 F.2d 768, 770 (1960), cert. denied 366 U.S. 970, 81 S.Ct. 1935, 6 L.Ed.2d 1260 (1961); Gadsden v. United States, 96 U.S.App.D.C. 162, 165, 223 F.2d 627, 630 (1955); McKinney v. United States, 93 U.S.App.D.C. 222, 225, 208 F.2d 844, 847 (1953). And see 18 U.S.C. § 3006A(c); F.R.Crim.P. 44(a). . See, e. g., Fulwood v. Clemmer, 111 U.S.App.D.C. 184, 186 n. 5, 295 F.2d 171, 173 n. 5 (1961); Smith v. United States, 106 U.S.App.D.C. 169, 170," }, { "docid": "3971757", "title": "", "text": "Williams v. Beto, 354 F.2d 698 (5 Cir. 1965). The record in Petitioner’s case refutes this charge. Additionally, Petitioner complains that his eoun sel did not inform him of his right to appeal. There is no necessity to advise a defendant of any right to appeal after a guilty plea. Boyes v. United States, 354 F.2d 31 (5 Cir. 1965); Dillane v. United States, 121 U.S.App.D.C. 354, 350 F.2d 732 (D.C.App.1965). Petitioner further contends that his plea was involuntary, having been made out of ignorance and inadvertence due to the judge’s failure to comply with Rule 11 of the Federal Rules of Criminal Procedure and that he failed to satisfy himself that there was factual basis for the plea and that it was entered voluntarily, as required by McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). The Court has had prepared the transcript of Petitioner’s arraignment and sentencing, and such, together with a copy of the waiver and consent signed by him and approved by the Court, is made a part of this file. The transcript conclusively refutes this contention. Petitioner also alleges that his plea was involuntary because he lacked competency at the time due to being under the influence of narcotics administered to him in the hospital. Incompetency due to drugs requires the application of the same principles as a claim of mental incompetency. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1962); Alexander v. United States, 290 F.2d 252 (5 Cir. 1963). The Court has obtained Petitioner’s medical records from Escambia General Hospital for the period in question. Such supplementary report is being made a part of this file. Petitioner was under the constant care of a physician. Although some drugs were prescribed for pain, the doctor, in his summary of Petitioner’s present illness stated that Petitioner was in very little pain. In the Orders for Treatment there appears on January 27, 1970, the notation “OK to go to court in AM”, and on January 29, 1970, the day before the Petitioner entered his guilty plea" }, { "docid": "22876153", "title": "", "text": "the Government’s additional affirmative showing that delay could not have been prejudicial was properly considered by the trial court in determining whether or not the delay was so undue as to violate constitutional rights. See Williams v. United States, supra; Taylor v. United States, supra, 99 U.S.App.D.C. at 186, 238 F.2d at 262. V. Appellant’s other contentions deserve mention. Prior to second trial, appellant’s motion for a transcript of the first trial at the expense of the Government was denied. It appears that appellant at that time made no attempt to show his need for the transcript. In the course of the second trial, defense counsel attempted through questioning to develop inconsistencies between testimony then given and testimony which he remembered as being given at the first trial, wherein he had also been counsel. When the trial court erroneously sustained an objection to one such question, counsel made no renewal of his motion for a transcript, on which to base this line of questioning. Of course, if he had made such a motion, it would have been proper to grant it. A free transcript of a first trial may be required for effective defense in a second trial. Compare Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Whitt v. United States, 104 U.S.App.D.C. 1, 259 F.2d 158 (1958), cert. denied, 359 U.S. 937, 79 S.Ct. 652, 3 L.Ed.2d 637 (1959). But, under the circumstances here, the failure to order a transcript does not appear to be reversible error. VI. Appellant also suggests that the evidence showed entrapment as a matter of law. It did not, though it did raise the question of entrapment for the fact finder to decide The law on entrapment in this Circuit has been clearly stated. When the evidence shows that a Government agent or intermediary has induced the commission of an offense, the issue of entrapment is raised for decision and, as was pointed out by Judge Burger, speaking for this court in Trent v. United States, supra, Note 7,109 U.S.App.D.C. at 154, n. 2, 284 F.2d at 288," }, { "docid": "23181115", "title": "", "text": "Ill. 2d 528, 185 N.E.2d 893, 897 (dissenting opinion Justice Shaefer). The holding of the majority in the case last cited was reversed in Shockey v. Illinois, 375 U.S. 22, 84 S.Ct. 83, 11 L.Ed.2d 43. We hold Williams was deprived of his constitutional right to effective assistance of counsel at the critical time between sentence and the expiration of time to appeal and that he was thereby deprived of his constitutional right to appellate review of his conviction. In situations where a defendant has failed to obtain a fair appellate review of his conviction by reason of the denial to him of a constitutionally guaranteed right, means have been found to rectify the wrong by providing an appellate review of the conviction. United States v. Smith, 6 Cir., 387 F.2d 268, 271; Miller v. United States, 5 Cir., 356 F.2d 63, 65; Dillane v. United States, 121 U.S.App.D.C. 354, 350 F.2d 732, 733; Hannigan v. United States, 10 Cir., 341 F.2d 587, 588. As pointed out in the cases last cited, the objective of granting a defendant an appellate review of which he has been unconstitutionally deprived is generally accomplished by means of vacating the sentence and remanding the case to the trial court for resentencing, the time for appeal then commencing to run from the date of the resentence. We follow such procedure here. This case is remanded to the trial court with directions to vacate the sentence imposed upon Williams in No. 64 CR 13(1) on May 1, 1964, and to resentence the defendant. Harvey L. Zuckman, court-appointed counsel who has efficiently and ably represented Mr. Williams upon this appeal, shall continue to represent Williams in this litigation unless and until relieved of such obligation by this court or the District Court. Reversed and remanded. . As pointed out in footnote 2 in Dillane v. United States, 121 U.S.App.D.C. 354, 350 F.2d 732, 733, “in resentencing, the District Court would, of course, consider the time appellant has already served.”" }, { "docid": "13966459", "title": "", "text": "GRIFFIN B. BELL, Circuit Judge. Two consecutive sentences of five and two years were imposed on appellant for transporting a woman in interstate commerce for the purpose of prostitution in violation of Title 18, § 2421. He was represented by retained counsel and was sentenced on November 27, 1963. On August 24, 1964, he filed a motion to vacate, modify or correct his sentences under Title 28 U.S.C.A. § 2255. His grounds went only to the sufficiency of the evidence. On October 12, 1964 he filed a supplemental petition in which he alleged in effect that his retained counsel failed through fraud and deceit to appeal his case. His motion, as supplemented, was denied without a hearing. The District Court held that the files and record of the case showed conclusively that appellant was entitled to no relief. The court was correct insofar as the original motion was concerned but the supplemental motion is quite another matter. It is now settled that an appeal from the judgment of a federal District Court in a criminal case is a matter of right. Coppedge v. United States, 1962, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21. It is also settled that the sentencing court has discretion to ascertain whether a petition under § 2255 presents a substantial question before granting a full evidentiary hearing. Sanders v. United States, 1963, 373 U.S. 1, 20-21, 83 S.Ct. 1068, 10 L.Ed.2d 148; and Moore v. United States, 5 Cir., 1964, 334 F.2d 25. With these fundamentals in mind we proceed to a consideration of the question presented by the supplemental motion. In Boruff v. United States, 5 Cir., 1962, 310 F.2d 918, we held that an indigent criminal defendant’s right to counsel extended through the period for taking an appeal. Then in two recent state prisoner habeas corpus cases we gave effect to the federal constitutional right to appellate counsel for indigents. Douglas v. People of State of California, 1963, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. See Pate v. Holman, 5 Cir., 1965, 341 F.2d 764, modified on rehearing, 343 F.2d" }, { "docid": "11258267", "title": "", "text": "Appellant then asked this court to remand the case to the District Court for an evidentiary hearing on his Camp contention. We denied that application, and later denied his request for the appointment of counsel to represent him on this appeal. In the Camp case the District Court denied a § 2255 motion based on a claim that Camp’s retained counsel failed through fraud and deceit to appeal his case. The motion was denied without a hearing. This court was of the view that the factual allegations required reversal for a hearing on the claim of fraud and deceit. The question on remand was to be whether the claim could be proven. If not, the matter would terminate. If so, then Camp would be entitled to have his conviction treated in the District Court as if on direct appeal. The procedure set out in Lyles v. United States, 5 Cir., 1965, 346 F.2d 789 would be applicable. This, in effect, allows an out of time motion for new trial and appeal. It also makes appointed counsel available for presenting the claim of fraud and deceit, and, if successful, on the ultimate attack on the conviction. Our view there stemmed from two settled principles of law. An appeal from the judgment of a federal District Court is a matter of right. Coppedge v. United States, 1962, 369 U.S. 438, 82 S. Ct. 917, 8 L.Ed.2d 21. An indigent criminal defendant’s right to counsel extends through the period for taking an appeal. Boruff v. United States, 5 Cir., 1962, 310 F.2d 918. Having these principles in mind, it becomes clear that the judgment of the District Court must be vacated for further proceedings in the District Court. Otherwise, assuming that appellant can prove the claim of fraud and deceit on the part of his retained counsel, he has lost the right to representation by appointed counsel on a possible motion for new trial and on an appeal. This case has involved an unravelling process. Once unravelled, it is apparent that the thorough hearing and review already afforded appellant on his § 2255" }, { "docid": "14706015", "title": "", "text": "relevant information prior to any determination of the Juvenile Court to transfer the juvenile to the regular criminal courts. Black v. United States, 122 U.S.App.D.C. ___, 355 F.2d 104 (1965). An earlier ruling had declared the juvenile’s right to counsel in involvement proceedings. Shioutakon v. District of Columbia, 98 U.S.App.D.C. 371, 236 F.2d 666, 60 A.L.R.2d 686 (1956). . See generally Report of the Attorney General’s Committee on Poverty and the Administration of Criminal Justice, pp. 90-124 (1963). . “One basic objective of a system of criminal appeals is * * * the establishment of procedures adequate to protect the legitimate interests of the accused irrespective of his financial status.” Id. at 90. Compare Coppedge v. United States, 369 U.S. 438, 447, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Griffin v. People of State of Illinois, 351 U.S. 12, 17, 76 S.Ct. 585, 100 L.Ed. 891 (1956). . The Statement to be Sanded by the Clerk to Appointed Counsel, approved by this court on December 13, 1963, apprises appointed counsel of his responsibilities and duties under the standards laid down in Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958), and in Canons 4 and 5 of the American Bar Association Canons of Professional Ethics. It makes dear the kind of showing that must be made before counsel is permitted to withdraw, and that withdrawals will be allowed only in exceptional cases. In addition, this court has found it useful to distribute a brief statement to indigent appellants at the time counsel is appointed, informing them of the nature of the appointed counsel system, the duties and responsibilities of their counsel, and the need for cooperation between client and counsel. Included is a specific warning that the court does not look with favor on ill-considered attempts by indigent appellants to replace appointed counsel. . See Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964); but see concurring opinion of Mr. Justice Goldberg, id. at 282, 84 S.Ct. at 428 urging that complete transcripts be provided indigents in all appeals. ." }, { "docid": "15410485", "title": "", "text": "is excusable. The character and scope of the opportunity must, of course, depend upon the circumstances, including importantly the petitioner’s allegations, and a formal hearing will become necessary if the facts are in dispute. Trial judges will be free to devise procedures reasonably calculated to develop the facts effectively and expeditiously. And it goes without saying that the decision as to whether there was excusable neglect must be approached and made in the spirit of liberality that led to the 1966 amendment. The petition is granted, the order of the District Court is vacated, and the case is remanded for a determination as to excusable neglect for petitioner’s failure to initiate an appeal within ten days after the entry of the judgment of his conviction, and for such further action as that determination may warrant. So ordered. . Pursuant to 28 U.S.C. § 1915(a). . The action of the District Judge is incorporated in an endorsement on petitioner’s affidavit reading “Denied—Not timely—Sentenced 1/26/68.” There is no indication that any inquiry was made as to whether the tardiness was excusable. . F.R.Crim.P. 37(a) (1). . United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947). But see Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). . United States v. Robinson, supra note 4. But see Dillane v. United States, 121 U.S.App.D.C. 354, 350 F.2d 732 (1965) ; Carrell v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964); Paulding v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964). . Petitioner’s affidavit served adequately as a notice of appeal, and if submitted in time conferred the jurisdiction essential to our entertaining the appeal he desires. See Belton v. United States, 104 U.S.App.D.C. 81, 84, 259 F.2d 811, 814 (en banc 1958); Shannon v. United States, 93 U.S.App.D.C. 4, 6-7, 206 F.2d 479, 481-482 (1953); Randolph v. Randolph, 91 U.S.App.D.C. 170, 198 F.2d 956 (1952); Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865 (1941). Cf. Kirksey v." }, { "docid": "6513966", "title": "", "text": "order to exercise that right, meet the time requirements of the procedural steps for perfecting his appeal, the first of which is the giving of a timely notice of appeal and without which the Court of Appeals has no jurisdiction. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21; United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259. It has been urged that the district court was required to advise Fallen of his right to appeal. There is merit in the suggestion if it can be said that the court-appointed counsel, who had stood by Fallen’s side and had spoken on his behalf while he was being sentenced, somehow disappeared eo instanti, during the time the sentence was being pronounced so that it could be said that Fallen was not represented by counsel when the court imposed sentence. The record of the judgments and commitments shows that “On this 15th day of January, 1962, came the attorney for the government and the defendant appeared in person and by counsel, Joel Moss, court appointed * * Fallen’s court-appointed counsel did not think his representation had terminated until the conclusion of the hour and a half conference between attorney and client following the imposition of sentence, as appears from his letter to Judge Simpson. The Supreme Court, discussing this question, has said: “The salutary purpose of this provision [Rule 37(a) (2)] may, however, not be achieved when the defendant appears at sentencing with counsel. If neither counsel, whether retained or court appointed, nor the district judge imposing sentence, notifies the defendant of the requirement for filing a prompt notice of appeal, the right of appeal may irrevocably be lost.” Coppedge v. United States, supra. There is, we think, no merit in this point. Williams v. United States, D.C.Cir.1951, 88 App.D.C. 212, 188 F.2d 41. The Rules of Criminal Procedure do not permit, as do the Rules of ■Civil Procedure, any enlargement of time for taking an appeal because of neglect, excusable or otherwise, or inadvertence. United States v. Robinson, .supra; United States v. Isabella," } ]

[ { "docid": "21559844", "title": "", "text": "and non-taxable income and expenditures, compare Burke, 929 F.2d at 112, with Teichner v. Commissioner, 453 F.2d 944, 945 — 47 (2d Cir.1972). The Commissioner’s assessment “is expected to be rational, not flawless.” Dodge v. Commissioner, 981 F.2d 350, 353 (8th Cir.1992), cert. denied, — U.S. -, 114 S.Ct. 58, 126 L.Ed.2d 28 (1993). The Tax Court rejected Caulfield’s factual allegations of error, such as the assertion that an $11,318 Camaro was not a personal expenditure in 1982 because he bought it on credit. See 66 T.C.M. at 718. The Court properly accounted for opening and closing bank balances, see 66 T.C.M. at 713-14, and rejected Caulfield’s claim of litigation settlement income as totally unsupported, see 66 T.C.M. at 719. The Court further found that any inaccuracies in the Commissioner’s calculations were to Caulfield’s advantage. These findings are not clearly erroneous. See Moser v. Commissioner, 914 F.2d 1040, 1044 (8th Cir.1990) (standard of review). Therefore, we agree that the Commissioner’s reconstruction of Caulfield’s taxable income is entitled to the presumption of correctness. Taxpayers who cannot produce adequate records “may not complain of the inevitable inaccura cies in assessment their default occasions.” Dodge, 981 F.2d at 353. For the foregoing reasons, we affirm the Commissioner’s calculation and assessment of tax deficiencies for 1982 and 1984. II. The Additions to Tax. A. Caulfield argues that he should not have been assessed negligence penalties under § 6653(a)(1) and (2). Under these provisions (since repealed), “[i]f any part of any underpayment ... of any tax ... is due to negligence,” the Commissioner adds penalties equal to five percent of the underpayment, § 6653(a)(1), and fifty percent of the interest on “the portion of the underpayment attributable to the negligence,” § 6653(a)(2). As the Tax Court noted, the taxpayer “bears the burden of proving that the Commissioner’s assessment of a penalty for negligence was improper.” Edison Homes, Inc. v. Commissioner, 903 F.2d 579, 584 (8th Cir.), cert. denied, 498 U.S. 984, 111 S.Ct. 517, 112 L.Ed.2d 529 (1990); see Chase v. Commissioner, 926 F.2d 737, 740 (8th Cir.1991). Caulfield presented no evidence on this issue" } ]

[ { "docid": "11008906", "title": "", "text": "of the sale of the airplane, and Page’s child support payments; (2) disallowing adjustments to his income for charitable contributions to the church and a parsonage allowance for the Valley View property; (3) disallowing Page’s election not to be subject to self-employment tax; and (4) assessing a penalty for filing a frivolous petition. We review de novo the tax court’s legal determination that Page had the burden of proving error in the Commissioner’s deficiency determination. We review for clear error the tax court’s factual determination that Page failed to meet this burden of proof. See Sargent v. Commissioner, 929 F.2d 1252, 1254 (8th Cir.1991). The tax court correctly held that Page had the burden of proving error in the Commissioner’s determination of deficiency. See T.C. Rule 142(a). The Commissioner’s assessment of a tax deficiency is normally entitled to a presumption of correctness. Caulfield v. Commissioner, 33 F.3d 991, 993 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1358, 131 L.Ed.2d 216 (1995). The presumption fails where the Commissioner makes the assessment without any foundation or supporting evidence. Dodge v. Commissioner, 981 F.2d 350, 353 (8th Cir.1992), cert. denied, — U.S.-, 114 S.Ct. 58, 126 L.Ed.2d 28 (1993). The taxpayer bears the burden of proving that the assessment is arbitrary or erroneous. Day v. Commissioner, 975 F.2d 534, 537 (8th Cir.1992). Where a taxpayer’s method of accounting does not accurately reflect income, the Commissioner may determine the taxpayer’s income under a method which does clearly reflect income. 26 U.S.C. § 446(b); Caulfield, 33 F.3d at 992. In a ease such as this, where the taxpayer files income tax returns which substantially understate income, an assessment of deficiency is “necessarily an estimate.” Dodge, 981 F.2d at 353. As long as the reconstruction method is “reasonable and logical,” Page may not complain of its inevitable inaccuracies. Id. The bank-deposits-plus-cash-expenditures method is a rational way to reconstruct income, where, as here, the Commissioner properly segregates taxable and nontaxable income and expenditures. See Caulfield, 33 F.3d at 993. Faced with Page’s role as trustee and minister for the church; his professed desire to eliminate" }, { "docid": "3657491", "title": "", "text": "with the IRS (and the Tax Court decision) is about whether they or some other entity actually earned the income in question. The Coles’ 2001 joint tax return reported adjusted gross income of $100,276, taxable income of $18,265, and a tax liability of $505. Yet, the Coles have produced no records supporting these figures. The evidence presented to the Tax Court showed that the Coles actually made a tremendous amount of money in 2001 that they did not report on their 2001 joint return. Scott, via his representation of the Sandefur Trust and others, helped the Bentley Group earn $1,430,802 in taxable deposits in 2001 as determined by the IRS and found by the Tax Court. Scott also made a decent amount of money independent of the Bentley Group as documented by the $79,652 in taxable deposits in JAC’s bank account, all from Scott’s legal services. Yet Scott only reported self-employment tax on $1,162 of income for a self-employment tax liability of $164. The Coles do not directly challenge the presumption of correctness granted the Commissioner’s deficiency assessment or our clearly erroneous standard for reviewing the Tax Court’s factual findings. Internal Revenue Code section 6001 requires taxpayers to “keep such records, render such statements, make such returns, and comply with such rules and regulations” as required by the Commissioner. When a taxpayer fails to regularly use an accounting method, “or if the method used does not clearly reflect income,” I.R.C. § 446(b) allows the Commissioner to determine taxable income via a method that in its discretion “does clearly reflect income.” See Webb v. Comm’r, 394 F.2d 366, 371-72 (5th Cir.1968) (holding that because a taxpayer’s “records did not clearly reflect his income, the Commissioner was authorized to use such methods as in his opinion clearly reflected that income” (citing 26 U.S.C. § 446(b)); Factor v. Comm’r, 281 F.2d 100, 117 (9th Cir.1960) (holding that an “undisputed rule is that, because of the failure of the taxpayer to keep books clear ly reflecting his income, the Commissioner had the right to compute the income” using a method the Commissioner believes accurately" }, { "docid": "16201868", "title": "", "text": "reconciling the moneys recorded in the ledgers to the sales receipts and bank deposits, as well as to The Club’s 1982 Federal income tax return, the Commissioner concluded that the “back room” money was not reflected on the 1982 and 1983 sales slips and had not been reported as taxable income. During the years in question, Stephen and Jeanette lived in Grand Rapids, Minnesota, approximately two hundred miles from Minneapolis. Jeanette visited Minneapolis only twice a year, and never visited any of the massage parlors. She had no knowledge of how the massage parlors operated, and had no contact with the masseuses or the business records of the parlors. The Commissioner determined that Stephen and Jeanette failed to report partnership income of $55,070.00 and $196,568.00 for 1982 and 1983 respectively, and rejected Jeanette’s claim for innocent spouse status. The Commissioner also determined that Richard failed to report that same amount of partnership income for the years in question. The Tax Court affirmed these determinations by the Commissioner, and this appeal ensued. II. DISCUSSION Appellants raise four issues on appeal: (1)whether the findings of the Commissioner are entitled to a presumption of correctness; (2) whether the. accounting method employed by the Commissioner is improper; (8) whether the fraud penalty is appropriate; and (4) whether Jeanette is entitled to innocent spouse protection. 1. Presumption of Correctness The Commissioner’s determination of a tax deficiency is presumptively correct, and the taxpayer bears the burden of proving that the determination is arbitrary or erroneous. United States v. Janis, 428 U.S. 433, 440-41, 96 S.Ct. 3021, 3025-25, 49 L.Ed.2d 1046 (1976); Mattingly v. United States, 924 F.2d 785 (8th Cir.1991). Courts have occasionally declined to accord a presumption of correctness to a deficiency notice when the Commissioner fails to introduce any substantive evidence linking the taxpayer to the income generating activity in question. Zuhone v. Commissioner, 883 F.2d 1317, 1325 (7th Cir.1989). Such a deficiency notice has been characterized as a naked assessment. Janis, 428 U.S. at 442, 96 S.Ct. at 3026. The issue of a naked assessment arises primarily when unreported income from an illegal" }, { "docid": "21559845", "title": "", "text": "produce adequate records “may not complain of the inevitable inaccura cies in assessment their default occasions.” Dodge, 981 F.2d at 353. For the foregoing reasons, we affirm the Commissioner’s calculation and assessment of tax deficiencies for 1982 and 1984. II. The Additions to Tax. A. Caulfield argues that he should not have been assessed negligence penalties under § 6653(a)(1) and (2). Under these provisions (since repealed), “[i]f any part of any underpayment ... of any tax ... is due to negligence,” the Commissioner adds penalties equal to five percent of the underpayment, § 6653(a)(1), and fifty percent of the interest on “the portion of the underpayment attributable to the negligence,” § 6653(a)(2). As the Tax Court noted, the taxpayer “bears the burden of proving that the Commissioner’s assessment of a penalty for negligence was improper.” Edison Homes, Inc. v. Commissioner, 903 F.2d 579, 584 (8th Cir.), cert. denied, 498 U.S. 984, 111 S.Ct. 517, 112 L.Ed.2d 529 (1990); see Chase v. Commissioner, 926 F.2d 737, 740 (8th Cir.1991). Caulfield presented no evidence on this issue other than to defend the accuracy of his tax returns. When a taxpayer fails to maintain adequate records of his taxable income, the Commissioner is put to the time-consuming task of reconstructing taxable income. If additional tax is then owing, it is particularly appropriate that the taxpayer pay, as a penalty, significantly more than the interest that is otherwise owed for late payment of the tax, unless he can affirmatively demonstrate that the failure was not due to negligence. See Catalano v. Commissioner, 81 T.C. 8, 17, 1983 WL 14910 (1983); Axelrod v. Commissioner, 56 T.C. 248, 258-59, 1971 WL 2505 (1971). The Tax Court correctly upheld the negligence additions in this case. B. Caulfield also challenges the substantial understatement addition to his 1984 tax. Although § 6661(a) provides that a twenty-five percent penalty “shall be added,” the taxpayer may avoid this addition in either of two ways — by proving there is “substantial authority” for his position, see § 6661(b)(2)(B)(i); Norgaard v. Commissioner, 939 F.2d 874, 880-81 (9th Cir.1991), or by persuading the Commissioner" }, { "docid": "11008907", "title": "", "text": "or supporting evidence. Dodge v. Commissioner, 981 F.2d 350, 353 (8th Cir.1992), cert. denied, — U.S.-, 114 S.Ct. 58, 126 L.Ed.2d 28 (1993). The taxpayer bears the burden of proving that the assessment is arbitrary or erroneous. Day v. Commissioner, 975 F.2d 534, 537 (8th Cir.1992). Where a taxpayer’s method of accounting does not accurately reflect income, the Commissioner may determine the taxpayer’s income under a method which does clearly reflect income. 26 U.S.C. § 446(b); Caulfield, 33 F.3d at 992. In a ease such as this, where the taxpayer files income tax returns which substantially understate income, an assessment of deficiency is “necessarily an estimate.” Dodge, 981 F.2d at 353. As long as the reconstruction method is “reasonable and logical,” Page may not complain of its inevitable inaccuracies. Id. The bank-deposits-plus-cash-expenditures method is a rational way to reconstruct income, where, as here, the Commissioner properly segregates taxable and nontaxable income and expenditures. See Caulfield, 33 F.3d at 993. Faced with Page’s role as trustee and minister for the church; his professed desire to eliminate the trustees’ private bank accounts to evade taxes; nearly $100,000 deposited in the church’s account over the two-year period; Page’s primary use of cash transactions; unidentified checks, wire transfers, and money orders; the church’s payment of his living expenses; Page’s report of only minimal income; and his failure to produce books or records accounting for the source of the deposits, the Commissioner reasonably used the bank-deposits-plus-cash-expenditures method - of reconstruction. See Dodge, 981 F.2d at 353. Such a showing also meets the threshold requirement of “linking the taxpayer to the income generating activity,” Day, 975 F.2d at 537, and entitles the Commissioner’s assessment to the usual presumption of correctness. See id. Once the Commissioner showed the deposits to be in the nature of income and to exceed what Page reported as income, Page bore the burden of persuading the factfinder whether and to what extent the deposits were nontaxable to him. Dodge, 981 F.2d at 354. On appeal, Page specifically argues against the inclusion of the following items in his gross income: (1) monies disbursed" }, { "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": "9458226", "title": "", "text": "“income” includes the compensation a taxpayer receives in return for services rendered. Taxpayers’ argument that wages received for services are not taxable as income is clearly frivolous. Broughton v. United States, 632 F.2d 706, 707 (8th Cir. 1980), cert. denied, 450 U.S. 930, 101 S.Ct. 1390, 67 L.Ed.2d 363 (1981); Hayward v. Day, 619 F.2d 716, 717 (8th Cir.), cert. denied, 446 U.S. 969, 100 S.Ct. 2951, 64 L.Ed.2d 830 (1980); see United States v. Francisco, 614 F.2d 617, 619 (8th Cir.), cert. denied, 446 U.S. 922, 100 S.Ct. 1861, 64 L.Ed.2d 278 (1980). For the 1976 tax year Taxpayers submitted a federal income tax return that had double asterisks inserted in each space where an income figure is required to be reported. A statement attached to the return stated that these double asterisks indicated that Taxpayers objected to the reporting of their income on a variety of constitutional grounds. In 1980 a second return for 1976 was filed reporting their income as zero, and Taxpayers similarly reported zero income for 1977. The Commissioner determined that Taxpayers’ failure to report their wages on their federal income tax returns for the 1976 and 1977 taxable years was due to negligence or an intentional disregard of the rules and regulations regarding the reporting of income. Accordingly, for 1976 and 1977 the Commissioner asserted an addition to tax under I.R.C. § 6653(a). And, because Taxpayers’ 1977 return was not timely filed, an addition to tax for 1977 was asserted. I.R.C. § 6651(a). The Tax Court’s sustainment of the Commissioner’s determination of an addition to tax was correct. Taxpayers have the burden of proof that the additions to tax involved herein were improperly assessed. Rubber Research, Inc. v. Commissioner, 422 F.2d 1402, 1407 (8th Cir. 1970); Heman v. Commissioner, 283 F.2d 227, 232 (8th Cir. 1960); Salapatas v. Commissioner, 446 F.2d 79, 82 (7th Cir. 1971). Taxpayers have neither discharged this burden nor presented any evidence that the Commissioner’s determination of deficiencies were incorrect. Neither do we believe Taxpayers’ reliance on their frivolous constitutional arguments constitute reasonable cause for failure to file a timely" }, { "docid": "3804856", "title": "", "text": "however, did not attack the presumption of correctness of the Commissioner’s determination on the ground that there was no linking of the Rapps with income-producing activity. Indeed, their petition alleges as one ground of error that the Commissioner failed to consider or allow for “legitimate and proper deductions.” The connection between the Rapps and income-producing activity is sufficiently acknowledged to permit the presumption of correctness to attach to the Commissioner’s determination. The Rapps’ characterization of the assessments as “arbitrary” is not sufficient to overcome that presumption. See Parkinson v. Commissioner, 647 F.2d 875, 876 (9th Cir.1981). The district court also correctly rejected the Rapps’ argument that the three year statute of limitations imposed by 26 U.S.C. § 6501(a) bars the assessment of taxes. The deficiency assessments were not barred because the Rapps failed to file returns for the years for which the deficiencies were assessed. Where no returns have been filed, taxes may be assessed at any time. Edwards v. Commissioner, 680 F.2d at 1269; 26 U.S.C. § 6501(c)(3). The Rapps’ claim to deductions and exemptions raises no triable issue as to the correctness of the Commissioner’s assessments. The taxpayer has the burden of proof to substantiate claimed deductions. Zmuda v. Commissioner, 731 F.2d 1417, 1421 (9th Cir.1984); cf. United States v. Zoila, 724 F.2d 808, 809-10 (9th Cir.), cert. denied, — U.S. —, 105 S.Ct. 116, 83 L.Ed.2d 59 (1984) (Commissioner need not make any factual showing in support of a deficiency determination based on the disallowance of deductions). The determination that the taxpayer has failed to produce sufficient evidence to support a deduction is one of fact, subject to reversal only if clearly erroneous. Zmuda, 731 F.2d at 1421. Here, the Tax Court did not err in finding that the Rapps failed to establish their entitlement to deductions and exemptions. Nor did the Tax Court err in sustaining the Commissioner’s assessment of penalties and additions to tax under 26 U.S.C. §§ 6651(a), 6653(a) and 6654. The IRS’ assessment of a negligence penalty under section 6653 is presumed to be correct. Delaney, 743 F.2d at 672. The taxpayer has" }, { "docid": "1260131", "title": "", "text": "3,326 B) Intrawest Bank Acct # 627-741-2 $1,320 547 (773) C) Texas Commerce Bank Acct # 0319996 $ (155) 221 376 TOTAL $421,079 Erickson petitioned the United States Tax Court challenging the Commissioner’s determination, especially that part of the determination attributing the cost of the marijuana to unreported income. In the Tax Court, Erickson did not testify and presented no defense on the merits. Rather, he argued: (1) that the Commissioner’s notice of deficiency was not entitled to the usual presumption of correctness in a civil proceeding because the Commissioner failed to substantively link Erickson to an income producing activity; and (2) the Commissioner erroneously used the cash expenditures method for reconstructing income because he failed to establish an opening and closing net worth, or to identify or quantify nontaxable sources of funds available to Erickson. The Tax Court rejected both of those arguments. Because Erickson offered no evidence, and in view of the evidence introduced by the Commissioner, the Tax Court found that Erickson failed to carry his burden of proving that the deficiency 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" }, { "docid": "15492158", "title": "", "text": "additional deductions were sought, the Tax Court held that the taxpayers failed to sustain their burden of proof. “Unquestionably the burden of proof is on the taxpayer to show that the commissioner’s determination is invalid.” Helvering v. Taylor, 293 U.S. 507, 515, 55 S.Ct. 287, 291, 79 L.Ed. 623 (1935). See also Cohen v. Commissioner of Internal Revenue, 266 F.2d 5, 11 (9th Cir. 1959), wherein this court stated that: “At the outset of a Tax Court proceeding to redetermine a tax deficiency, the Commissioner’s determination is presumed to be correct. . . . The burden of proof is thus placed upon the taxpayer to show that the Commissioner’s determination is invalid.” We conclude that the Tax Court’s holding was not clearly erroneous. The taxpayers’ next contention is that the Commissioner and the Tax Court incorrectly allocated the basis of taxpayers’ real property between land and improvements for purposes of computing allowable deductions for depreciation. Section 167(a) of the Internal Revenue Code of 1954 permits a deduction for wear and tear of property used in the taxpayer’s “trade or business” or held “for the production of income.” The burden of proving the value attributable to a particular asset is upon the taxpayer. Blackstone Realty Co. v. Commissioner of Internal Revenue, 398 F.2d 991, 996-97 (5th Cir. 1968). Where the Commissioner has made an allocation for the purpose of computing depreciation, the allocation is presumptively correct, and the taxpayer has the “heavy burden of proving that the Commissioner’s action was plainly arbitrary.” Lucas v. Structural Steel Co., 281 U.S. 264, 271, 50 S.Ct. 263, 266, 74 L.Ed. 848 (1930). The taxpayers made no such showing. We hold that the allocation made by the Commissioner and approved by the Tax Court was not clearly erroneous. Finally, taxpayers argue that the Tax Court committed error in assessing penalties under section 6653(a) of the Internal Revenue Code of 1954. Justification for the penalty assessment abounds. In no category of deductions for any year did the sum of checks offered to substantiate the deductions equal the amount claimed on taxpayers’ returns. This indicates that the" }, { "docid": "6392863", "title": "", "text": "of a method that is itself only an approximation.” Id. In contrast to the government’s position at oral argument, Carson does not support the IRS’ arbitrary refusal to consider the 1989 credit card balances in its determination of the Yoons’ opening net worth. Carson, which involved wagering income, reinforced the government’s obligation to provide some factual foundation for its assessments: “While we realize the difficulties the Commissioner encounters in assessing deficiencies in circumstances such as are presented here, we nevertheless must insist that the Commissioner provide some predicate evidence connecting the taxpayer to the charged activity if effect is to be given his presumption of correctness.” 560 F.2d at 697 (citing Gerardo v. Commissioner of Internal Revenue, 552 F.2d 549, 554 (3d Cir.1977)). Where the burden lies on the government to produce some factual predicate for an assessment, the government may not discharge that burden simply by imposing a naked assessment and then pointing out that the taxpayers did not produce evidence to rebut that assessment. Janis, 428 U.S. at 441, 96 S.Ct. at 3025-26. Taxpayers do bear the burden of maintaining accounting records which enable them to file a correct tax return, e.g., Webb, 394 F.2d at 371, and in the absence of such records the IRS may compute the taxpayer’s income by any reasonable method that clearly reflects income, 26 U.S.C. § 446(b) (1997); however, a tax determination without rational foundation is “not properly subject to the usual rule with respect to the burden of proof in tax cases.” Jams, 428 U.S. at 441, 96 S.Ct. at 3026 (citing Helvering v. Taylor, 293 U.S. 507, 514-15, 55 S.Ct. 287, 290-91, 79 L.Ed. 623 (1935)). As this Court eloquently noted in Carson: “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.” 560 F.2d at 696; see also Portillo, 932 F.2d at 1133 (“In these types of unreported income cases, the Commissioner would not be able to choose to rely solely upon the naked assertion that the taxpayer received" }, { "docid": "1260138", "title": "", "text": "of proving the deficiency determination erroneous. Our holding on this point is dispositive, since either the evidence just outlined or the cash expenditures approach would provide a sufficient basis to preserve the presumption of correctness in the notice of deficiency. However, the Tax Court and the parties on appeal address both issues as if each must be resolved in favor of the government to sustain the notice. Furthermore, the notice of deficiency itself refers to the cash expenditures method of income reconstruction, not to possession of liquid assets. The Commissioner has made no effort to harmonize the principles involved. Accordingly, we consider Erickson’s second argument. The second issue in this case relates to the Commissioner’s determination of income based on cash expenditures. It is well established that taxpayers are required to keep adequate records or books from which their correct tax liability may be determined. See 26 U.S.C. § 6001; 26 C.F.R. 1.6001-1; Jones v. Commissioner, 903 F.2d at 1303 (10th Cir.1990); Anson v. Commissioner, 328 F.2d 703, 705 (10th Cir.1964) (“[T]he privilege of original self-assessment accorded the taxpayer carries with it the burden of support through the maintenance of records which clearly and accurately reflect income.”). Where, as here, the taxpayer keeps inadequate records or no records at all, the Commissioner is entitled to reconstruct his income by any reasonable means. Carson v. United States, 560 F.2d 693, 696 (5th Cir.1977); Petzoldt v. Commissioner, 92 T.C. 661, 687 (1989): The absence of statutory guidelines suggests that Congress intended that respondent should have great latitude in making determinations of liability, particularly where the taxpayer files no returns and refuses to cooperate in the ascertainment of his income. Thus, respondent is entitled to use any reasonable means of reconstructing income. Further, he is given greater latitude in determining which method of reconstruction to apply where the case involves an illegal enterprise in which the taxpayer has failed to file a return and has kept no records. Nor is mathematical exactitude required of respondent, for if it were it “would be tantamount to holding that skillful concealment is an invincible barrier to" }, { "docid": "3804855", "title": "", "text": "(1984). However, the presumption arises only where it is supported by some substantive evidence that the taxpayer received unreported income. Delaney, 743 F.2d at 671; Edwards v. Commissioner, 680 F.2d 1268, 1270 (9th Cir.1982); Weimerskirch v. Commissioner, 596 F.2d 358, 360 (9th Cir.1979). Once the Government has carried its initial burden of introducing some evidence linking the taxpayer with income-producing activity, the burden shifts to the taxpayer to rebut the presumption by establishing by a preponderance of the evidence that the deficiency determination is arbitrary or erroneous. Adamson, 745 F.2d at 547; Delaney, 743 F.2d at 671. The record on appeal contains the deficiency notices, summonses to banks and other third parties, Forms 4089, 2210 and 1040 prepared by the IRS, and other documents showing the calculations upon which the IRS based the deficiencies. While these records reflect that the IRS had before it information linking the Rapps with income-producing activities, including employment, the sale of their residence, and involvement in a business, that underlying information does not itself appear in the record. The Rapps, however, did not attack the presumption of correctness of the Commissioner’s determination on the ground that there was no linking of the Rapps with income-producing activity. Indeed, their petition alleges as one ground of error that the Commissioner failed to consider or allow for “legitimate and proper deductions.” The connection between the Rapps and income-producing activity is sufficiently acknowledged to permit the presumption of correctness to attach to the Commissioner’s determination. The Rapps’ characterization of the assessments as “arbitrary” is not sufficient to overcome that presumption. See Parkinson v. Commissioner, 647 F.2d 875, 876 (9th Cir.1981). The district court also correctly rejected the Rapps’ argument that the three year statute of limitations imposed by 26 U.S.C. § 6501(a) bars the assessment of taxes. The deficiency assessments were not barred because the Rapps failed to file returns for the years for which the deficiencies were assessed. Where no returns have been filed, taxes may be assessed at any time. Edwards v. Commissioner, 680 F.2d at 1269; 26 U.S.C. § 6501(c)(3). The Rapps’ claim to deductions and" }, { "docid": "3657492", "title": "", "text": "Commissioner’s deficiency assessment or our clearly erroneous standard for reviewing the Tax Court’s factual findings. Internal Revenue Code section 6001 requires taxpayers to “keep such records, render such statements, make such returns, and comply with such rules and regulations” as required by the Commissioner. When a taxpayer fails to regularly use an accounting method, “or if the method used does not clearly reflect income,” I.R.C. § 446(b) allows the Commissioner to determine taxable income via a method that in its discretion “does clearly reflect income.” See Webb v. Comm’r, 394 F.2d 366, 371-72 (5th Cir.1968) (holding that because a taxpayer’s “records did not clearly reflect his income, the Commissioner was authorized to use such methods as in his opinion clearly reflected that income” (citing 26 U.S.C. § 446(b)); Factor v. Comm’r, 281 F.2d 100, 117 (9th Cir.1960) (holding that an “undisputed rule is that, because of the failure of the taxpayer to keep books clear ly reflecting his income, the Commissioner had the right to compute the income” using a method the Commissioner believes accurately reflects income (citations omitted)). Courts have long approved of the “bank deposits” and the “specific items” methods. See United States v. Merrick, 464 F.2d 1087, 1092 (10th Cir.1972) (affirming a tax evasion conviction — challenged on sufficiency of the evidence — that was established by the specific items method); United States v. Stein, 437 F.2d 775, 779-81 (7th Cir.1971) (holding that a tax evasion conviction could be proved on “a bank deposits analysis” (citations omitted)). The reconstruction of a taxpayer’s income need only be reasonable in consideration of the case’s circumstances and facts. See Bradford v. Comm’r, 796 F.2d 303, 306 (9th Cir.1986). The Commissioner’s reconstruction of the Coles’ income shows that they omitted $1,215,183 of income and $1,329,268 of self-employment income from their 2001 return. The Coles failed at the Tax Court to rebut the assessment’s presumption of accuracy and fail on appeal to show clear error in the court’s finding that because the Coles did not produce credible documentary or other evidence showing otherwise, the Commissioner’s reconstruction was “reasonable and substantially accurate.” Instead," }, { "docid": "22436618", "title": "", "text": "(1984). On appeal, the Palmers argue that summary judgment was inappropriate because alleged IRS errors prevented the presumption of correctness from attaching and because of alleged procedural defects. These contentions will be addressed in turn. A The Palmers first argue that the district court erred in granting summary judgment because the method used by the IRS in reconstructing their income was unreasonable. In an action to collect taxes, the government bears the initial burden of proof. Stonehill, 702 F.2d at 1293. 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. Id. The presumption shifts the burden of proof to the taxpayers to show that the determination is incorrect. Id.; Rapp v. Commissioner, 774 F.2d 932, 935 (9th Cir.1985). The Palmers argue that the presumption of correctness should not be granted in this case because the attribution to them of national median household income is not a rational method for reconstructing their income. A showing by the taxpayer that a determination is arbitrary, excessive or without foundation shifts the burden of proof back to the IRS. Helvering v. Taylor, 293 U.S. 507, 515-516, 55 S.Ct. 287, 290-291, 79 L.Ed. 623 (1935); Adamson v. Commissioner, 745 F.2d 541, 547 (9th Cir.1984). Congress specified no particular methods or evidentiary burdens on the Commissioner when choosing a method for reconstructing a taxpayer’s income under Section 446. The Commissioner, therefore, has wide discretion in choosing an income-reconstruction method. Petzoldt v. Commissioner, 92 T.C. 661, 693, 1989 WL 27845 (1989). Where the Commissioner’s method of calculating income is rationally based, courts afford a presumption of correctness to the Commissioner’s determination. Cracchiola v. Commissioner, 643 F.2d 1383, 1385 (9th Cir.1981) (per curiam). The taxpayer has the burden of proving the method to be wrong. Id. Courts have long held that the IRS may rationally use statistics to reconstruct income where taxpayers fail to offer accurate records. See Edwards v. Commissioner, 680 F.2d 1268, 1270-71 (9th Cir.1982); United States v. McMullin, 948 F.2d 1188, 1192, n. 3 (10th Cir.1991)." }, { "docid": "11008905", "title": "", "text": "prove either that he had received approval for exempt status or that the stipend resulted solely from his performance of ministerial services. Id. at 25. The Commissioner conceded the deducti-bility of real estate taxes, interest on loans, and certain legal fees. Id. at 26. The tax court found that Page’s taxes were deficient for the years in question and that additions to tax were required under sections 6653(a)(1) — (2) (negligence), 6661 (substantial understatement of tax) and 6621(c) (interest rate of 120% of the underpayment rate). Page v. Commissioner, No. 3670-91 (T.C. Jan. 19, 1994). The court found “substantial private inurement,” Page, T.C. Memo. 1993-398 at 30 n. 7, and disallowed Page any deduction for his purported charitable contributions. Id. at 22 n. 5. The court found no meaningful difference between this case and Page I and assessed a penalty under Section 6673 for institution of a frivolous proceeding. Id. at 33-34. Page argues that the tax court erred in: (1) including in Page’s gross income all deposits to the church’s bank account, the proceeds of the sale of the airplane, and Page’s child support payments; (2) disallowing adjustments to his income for charitable contributions to the church and a parsonage allowance for the Valley View property; (3) disallowing Page’s election not to be subject to self-employment tax; and (4) assessing a penalty for filing a frivolous petition. We review de novo the tax court’s legal determination that Page had the burden of proving error in the Commissioner’s deficiency determination. We review for clear error the tax court’s factual determination that Page failed to meet this burden of proof. See Sargent v. Commissioner, 929 F.2d 1252, 1254 (8th Cir.1991). The tax court correctly held that Page had the burden of proving error in the Commissioner’s determination of deficiency. See T.C. Rule 142(a). The Commissioner’s assessment of a tax deficiency is normally entitled to a presumption of correctness. Caulfield v. Commissioner, 33 F.3d 991, 993 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1358, 131 L.Ed.2d 216 (1995). The presumption fails where the Commissioner makes the assessment without any foundation" }, { "docid": "16201869", "title": "", "text": "four issues on appeal: (1)whether the findings of the Commissioner are entitled to a presumption of correctness; (2) whether the. accounting method employed by the Commissioner is improper; (8) whether the fraud penalty is appropriate; and (4) whether Jeanette is entitled to innocent spouse protection. 1. Presumption of Correctness The Commissioner’s determination of a tax deficiency is presumptively correct, and the taxpayer bears the burden of proving that the determination is arbitrary or erroneous. United States v. Janis, 428 U.S. 433, 440-41, 96 S.Ct. 3021, 3025-25, 49 L.Ed.2d 1046 (1976); Mattingly v. United States, 924 F.2d 785 (8th Cir.1991). Courts have occasionally declined to accord a presumption of correctness to a deficiency notice when the Commissioner fails to introduce any substantive evidence linking the taxpayer to the income generating activity in question. Zuhone v. Commissioner, 883 F.2d 1317, 1325 (7th Cir.1989). Such a deficiency notice has been characterized as a naked assessment. Janis, 428 U.S. at 442, 96 S.Ct. at 3026. The issue of a naked assessment arises primarily when unreported income from an illegal tax-generating activity is alleged. Id.; Gerardo v. Commissioner, 552 F.2d 549, 554 (3d Cir.1977); Weimerskirch v. Commissioner, 596 F.2d 358 (9th Cir.1979). However, it is generally accepted that the Commissioner also must provide evidence linking a taxpayer to a legal tax-generating activity before being entitled to the presumption of correctness. Anastasato v. Commissioner, 794 F.2d 884, 887 (3d Cir.1986) accord Portillo v. Commissioner, 932 F.2d 1128 (5th Cir.1991). Appellants assert that the Commissioner made a naked assessment of their 1983 tax liability, and that the determination is not entitled to the presumption of correctness. Appellants base this assertion on the premise that because the 1983 deficiency judgment was not based on individual 1983 records, it must be a naked assessment. We disagree. Appellants do not contend that they are unconnected to the tax-generating income. It is undisputed that appellants managed the massage parlors for the years in question. Accordingly, the Commissioner has demonstrated a link between the taxpayers and the tax-producing income. Such a showing satisfies the threshold level of proof and entitles the findings" }, { "docid": "22889146", "title": "", "text": "is clearly erroneous “if the record lacks substantial evidence to support it,” Thelma C. Raley, Inc. v. Kleppe, 867 F.2d 1326, 1328 (11th Cir.1989), such that our review of the entire evidence leaves us “with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum.Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948); see also Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). The Tax Court’s rulings on the interpretation and application of the statute are conclusions of law reviewed de novo. Estate of Wallace v. Commissioner, 965 F.2d 1038, 1044 (11th Cir.1992). Moreover, whether a taxpayer received income is an ultimate fact and as such is to be treated as a legal rather than a factual determination to be reviewed de novo. Weiss v. Commissioner, 956 F.2d 242, 244 (11th Cir.1992). A. Presumption of Correctness Ordinarily, the Commissioner’s determination of tax liability is presumed correct. Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 9, 78 L.Ed. 212 (1933); Tax Court Rules of Practice and Procedure 142(a). The taxpayer, therefore, bears the burden of proving the determination erroneous or arbitrary. Welch, 290 U.S. at 115, 54 S.Ct. at 9; Webb v. Commissioner, 872 F.2d 380, 381 (11th Cir.1989). For the presumption to adhere in cases involving the receipt of unreported income, however, the deficiency determination must be supported by “some evi-dentiary foundation linking the taxpayer to the alleged income-producing activity.” Weimerskirch v. Commissioner, 596 F.2d 358, 362 (9th Cir,1979). Although a determination that is unsupported by such a foundation is clearly arbitrary and erroneous, id., the required showing is “minimal.” Carson v. United States, 560 F.2d 693, 697 (5th Cir.1977) (quoting Gerardo v. Commissioner, 552 F.2d 549, 554 (3rd Cir.1977)). Once the Tax Court has found that this minimal evi-dentiary showing has been made, the deficiency determination is presumed correct, and it becomes the taxpayer’s burden to prove it arbitrary or erroneous. Gold Emporium, Inc. v. Commissioner, 910 F.2d 1374, 1378 (7th Cir.1990). The Tax Court noted the following" }, { "docid": "8704885", "title": "", "text": "Tax § 6651(a)(1) § 6654 Year Deficiency Penalty Penalty 1983 5,277.00 641.00 114.00 1984 1,331.00 100.00 3.00 1985 2,059.00 515.00 118.00 At trial, the Hardys testified that they had an oral contract to keep their respective property separate. The Tax Court found the testimony to be uncredible and, after making findings of fact and conclusions of law, approved the following tax deficiency assessments against Hardy: 26 U.S.C. 26 Tax § 6651(a)(1) § 6654 Year Deficiency Penalty Penalty 1983 5,257.00 636.00 114.00 1984 1,331.00 100.00 3.00 1985 2,059.00 575.00 118.00 We have jurisdiction pursuant to 26 U.S.C. § 7482, and review the Tax 'Court’s findings of fact for clear error and conclusions of law de novo. See Estate of Rapp v. Commissioner, 140 F.3d 1211, 1215 (9th Cir.1998) (as amended). II Under the facts of this case, the Tax Court correctly allocated the burden of proof regarding Hardy’s deficiency to the Commissioner for tax year 1983 and to Hardy for tax years 1984 and 1985. The Commissioner does not challenge the Tax Court’s determination that the 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" }, { "docid": "4103610", "title": "", "text": "treated as dividends that are taxable as ordinary income to the shareholder, see Commissioner v. Gordon, 391 U.S. 88, 88-89, 88 S.Ct. 1517,1520-21, 20 L.Ed.2d 448, whereas the latter are generally treated either as return of capital (to the extent of the shareholder’s basis in the corporation’s securities) or as capital gain (to the extent that the distribution exceeded the shareholder’s basis). See Mazzocchi Bus Co. v. Commissioner, 14 F.3d 923, 926 (3d Cir.1994); Truesdell v. Commissioner, 89 T.C. 1280, 1294-1295, 1987 WL 258105 (1987). Pittman contends that the Commissioner made a number of mistakes in calculating BBL’s earnings and profits and therefore her determination should not be accorded the presumption of correctness. Once again, Pittman seriously misconstrues the nature of the showing required to eviscerate the presumption of correctness. Cf. Zuhone v. Commissioner, 883 F.2d 1317, 1325 (7th Cir.1989) (“the taxpayer’s argument, which presumes that the failure of the government to adhere to its promulgated procedures in calculating a tax deficiency necessarily results in an arbitrary and excessive deficiency notice, seriously misconstrues the inquiry required under the arbitrary and excessive doctrine”). All that is required to support the presumption is that the Commissioner’s determination have some minimal factual predicate. It is only when the Commissioner’s assessment is shown to be “without rational foundation” or “arbitrary and erroneous,” that the presumption should not be recognized. Ruth v. United States, 823 F.2d 1091, 1094 (7th Cir.1987); see also Zuhone, 883 F.2d at 1325 (noting that the presumption may be rebutted in the case of a “naked” assessment — i.e., one that is “without rational foundation and excessive”). Pittman has failed to make such a showing, notwithstanding his claims of error by the Commissioner. It is significant that we have described the necessary showing as “arbitrary and erroneous,” not just “erroneous.” As the Eighth Circuit has observed in a related context, the Commissioner’s “assessment is intended to be an estimate. It is expected to be rational not flawless.” Dodge v. Commissioner, 981 F.2d 350, 353 (8th Cir.1993), certiorari denied, 510 U.S. 812, 114 S.Ct. 58, 126 L.Ed.2d 28. In the instant case," } ]

[ { "docid": "23139302", "title": "", "text": "v. Gerwens, 874 F.2d 1534, 1538 (11th Cir.1989). The burden then shifts to the employer to “articulate” a legitimate, non-discriminatory reason for its action. Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094-95. If the employer successfully articulates such a reason, then the burden shifts back to the plaintiff to show that the proffered reason is really pretext for unlawful discrimination. Id. at 255-56, 101 S.Ct. at 1095-96. 1. Prima Facie Case In a traditional failure-to-hire case, the plaintiff establishes a prima facie case by showing that: (1) he was a member of a protected class; (2) he applied and was qualified for a position for which the defendant was accepting applications; (3) despite his qualifications, he was not hired; and (4) after his rejection the position remained open or was filled by a person outside his protected class. Welbom v. Reynolds Metals Co., 810 F.2d 1026, 1028 (11th Cir.1987) (per curiam). Schoenfeld’s complaint alleges that he was discriminated against both on the basis of his race and on the basis of his gender. The Government concedes that Schoenfeld made the first three requisite showings in his discrimination claims in that he was a white male who applied for the biologist position and was qualified for it but was not hired. The key inquiry, therefore, is whether he has met the fourth requirement. The district court concluded that Schoenfeld had not because he had not shown that anyone had been hired for the biologist position, he had not shown that he had been treated differently than any similarly situated female or minority applicant, and he had not offered any other evidence of discrimination. The district court correctly disposed of the race discrimination claim because it is clear that Schoenfeld has failed to satisfy the fourth prong of the requisite prima facie showing. Although he makes conclusory references to Boyd suggesting that Laumeyer hire an Oriental woman, he points to no admissible evidence indicating the race of the woman. Instead, there is only speculation that the female might have been Oriental. (R.2-40 at 36; R. 2-55 at 83-84,106; R. 2-52 at" } ]

[ { "docid": "13153450", "title": "", "text": "early 1980, Jennings and a white male, A.B. Wood, applied for the position. Wood began working for Dumas in 1979 and possessed a B.S.E. degree and M.S.E. in history. Wood was chosen for the position of head football coach. Jennings subsequently filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC). At the time of Wood’s selection as head football coach, Wood had a master’s degree while Jennings had only a B.S.E. degree. In addition, Wood had more total years of experience in education and as a head coach and had won a high school championship in his division. The district court found that Jennings established a prima facie case of discrimination but also found that Dumas had articulated a legitimate non-discriminatory reason for hiring Wood and that the reasons for failing to choose Jennings were not pretextual. The district court further found that Jennings was not discharged in retaliation for filing an EEOC charge as alleged in another complaint filed by Jennings in on June 9, 1980. After not being chosen for the head coaching position for football, plaintiff applied for the position of head basketball coach. Jennings met with his superintendent and principal in the spring of 1980 to discuss the head basketball coaching position. When the district hired another person for the job, Jennings told the superintendent that he would consider taking a different job out of the district. Jennings denied ever telling the superintendent or anyone else that he had accepted or was going to accept another position outside the district. Jennings testified at trial that he had even filled out and returned in March of 1980 a form supplied by the principal indicating his intention to return the next year. Dumas contends that Jennings informed both the superintendent and principal that he intended to resign his employment so that he could take a job as a graduate assistant at Henderson State University or accept a job opportunity afforded him in Texas. Even though the superintendent requested a written resignation from Jennings, none was received and the superintendent proceeded to fill the position on the" }, { "docid": "17212848", "title": "", "text": "LSU hired Minnis, a black male, as head coach of its women’s tennis team in August 1991. (Doc 1-2, ¶ 2). In his twenty-one years as head coach, Minnis’s teams qualified for the National College Athletic Association (“NCAA”) Tournament fifteen times. (Doc 1-2, ¶ 3). Minnis received many awards and accolades during his tenure, including being chosen as Southwest Regional Women’s Tennis Coach of the Year five times, and Southeastern Conference (“SEC”) Coach of the Year once. (Id.). Minnis coached ten All-American tennis players during his tenure at LSU, including the SEC Player of the Year in 2001 and 2007. (Doc 1-2, ¶ 3). During Minnis’s tenure as head coach, the LSU women’s tennis team achieved a winning record only four times overall, and in the SEC on only three occasions (1997, 2004, 2008). (Doc. 59-2 at p. 3). His overall SEC win-loss record as head coach was 86-146. (Id.). While head coach, Minnis’s teams competed in the NCAA tournament fifteen out of twenty-one years, but in Minnis’s last twelve years, the team never advanced past the second round. (Doc. 59-2 at p. 4). In the year preceding Minnis’s termination, his team did not reach the NCAA tournament, and in the three years preceding the non-renewal of Minnis’ contract, the women’s tennis team had three consecutive losing seasons. (Doc. 59-2 at pp. 3-4). Throughout the time relevant to this litigation, Jeff Brown, (“Brown”) a white male, was the head coach of the men’s tennis team. (Doc. 59-2 at p. 25). Brown was hired in 1998. (Id.). In calculating Brown’s salary, LSU had to compete with another university on at least one occasion because of a competing offer from Texas A & M. (Doc. 59-2 at pp. 20-21). In the five years preceding Minnis’s termination, his and Brown’s teams had identical records. (Doc. 101 at p. 11). However, in his most successful season, Brown’s team achieved a ranking of second in the nation. (Id.). By contrast, the highest ranking achieved by Minnis’s team was eighteenth. (Id.). In Brown’s fifteen years as LSU’s head coach, the men’s tennis team finished with a" }, { "docid": "14786622", "title": "", "text": "and the same is hereby GRANTED in part and DENIED in part and, as detailed herein, Plaintiff may proceed to trial on her § 1983 equal protection claim alleging disparate treatment against the Board on the theory that the Board had an unofficial, but well-settled, custom that caused gender discrimination, and against Monday in his individual capacity; and (4) Defendants’ Motion For Summary Judgment on Plaintiffs Equal Pay Act claim (Count 4) be and the same is hereby GRANTED. . Plaintiff's deposition is contained in two volumes. The court will refer to volume I as \"Pl.'s Dep. I” and volume II as \"PL's Dep. II.” . In either 1994 or 1995, Plaintiff asked for an assistant coach but the Board said that if it \"hired [Plaintiff] an assistant, [it] would have to get other women coaches in the system an assistant.” (Id.) . Plaintiff requested this \"title, in hopes of maybe increasing [her] salary.” (Pl.'s Dep. I at 66.) According to Plaintiff, the position for Athletic Director was only available to the head football coach. (Id. at 68.) . For instance, in approximately June 1996, Monday told Plaintiff that her teams could not use the weight room because the football teams used the weight room \"all five days.” (Id.) . For instance, Monday told Plaintiff to be \"frugal” when buying new female volleyball uniforms, while the male basketball uniforms were more expensive and \"top of the line.” (Pl.’s Dep. I at 54-55; Pl.'s Dep. II at 28-30.) . The court notes that, in April 1995, Plaintiff did resign from coaching basketball after receiving assurances from Monday and Ronnie Jackson, who at the time was the principal of Dale County High, that she would not be transferred. (Pl.’s Dep. I at 76-78; Jackson Dep. at 7.) . The minutes from the “Emergency Board Meeting” state that \"[t]he superintendent recommended that [Plaintiff] remain as a physical education teacher at Dale County High for the 1996-97 school year and that she retain the coaching duties as girls’ volleyball and girls’ softball head coach.” (Pl.’s Evid. Sub., Ex. 9.) . The court's Memorandum Opinion" }, { "docid": "21634958", "title": "", "text": "college coaches that are African-American. It does not offer statistics on the percentage of African-Americans that would be otherwise qualified for head coaching positions, but were not hired. Finally, also in support of his disparate impact claim, the plaintiff asserts that the use of the prior college coaching experience requirement has yielded discriminatory results when applied to other athletic programs at UNH. The plaintiff contends that only one out of 23 coaches hired since 1993, when the plaintiff asserts the prior college coaching experience requirement was adopted for most head coaching positions at UNH, has been African-American. However, even if true, the Supreme Court held in Wards Cove that “[t]he percentage of nonwhite workers found in other positions in the employer’s labor force is irrelevant to the question of a prima facie statistical case of disparate impact.” 490 U.S. at 653, 109 S.Ct. 2115. Thus, the plaintiff has failed to meet his burden of establishing a prima facie case of disparate impact, and this Court also grants summary judgment as to that claim. For the forgoing reasons, the defendant’s Motion for Summary Judgment [Doc. # 14] is GRANTED and the case is DISMISSED. . This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(3). Personal jurisdiction is not disputed. . The National Collegiate Athletic Association. . Title 42 U.S.C. § 1981 provides that \"[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory ... to the full and equal benefit of all laws.” Title 42 U.S.C. § 2000d (Title VI) provides that “No person in the United States shall, on the ground of race ... be excluded from participation in, be denied any benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.” Here, the parties do not dispute that defendant UNH is an entity receiving federal funds that is subject to the provisions of Title VI. Finally, Title VII prohibits certain “Unlawful employment practices,” which include “failing] or refusing] to hire or discharge any individual, or otherwise to discriminate against" }, { "docid": "10300036", "title": "", "text": "OPINION BATCHELDER, Circuit Judge. Defendant-appellant School District of the City of Hazel Park (“Hazel Park”) appeals from a jury award in favor of plaintiff-appellee Geraldine Fuhr, in Fuhr’s sexual discrimination suit brought under Title VII, 42 U.S.C. § 2000e et seq., and the Elliott-Larsen Civil Rights Act of Michigan, MCL § 37.2101 et seq. Hazel Park also appeals the district court’s subsequent injunctive order requiring the school district to hire Fuhr as head coach of the school’s varsity male basketball team, as well as the award of attorneys’ fees to the plaintiff. Plaintiff-appellee Fuhr cross-appeals the district court’s order striking the jury’s award of future damages following her installment as the boys’ varsity basketball head coach. For the reasons set forth below, we will AFFIRM the judgment of the district court in all respects. I. This suit arises from Hazel Park’s 1999 decision to hire John Barnett rather than Fuhr for the vacant position of boys’ varsity basketball coach. At that time, Barnett, a relatively new male teacher at Hazel Park, had coached the boys’ freshman basketball team for two years. On the other hand, Fuhr, a female teacher at Hazel Park, had been the head coach of the girls’ varsity basketball team for some ten years, and coach of the boys’ junior varsity and assistant coach of the boys’ varsity basketball teams for eight years. In 1999, Charles Kirkland, the boys’ varsity basketball coach, announced his intention to retire from coaching at the end of the year. Fuhr and Barnett were the only individuals who applied for the post. At the same time, David Aldred, who had been the Hazel Park High School athletic director for thirteen or fourteen years, announced that he was retiring on July 1, 1999. The committee assembled to interview the candidates for the position consisted of Superintendent James Anker; Dan Grant, the district athletic director; Victor Mayo, the assistant superintendent; Jim Meisinger, the high school principal; and Tom Pratt, the individual replacing Aldred as the high school athletic director. Neither Aldred nor Kirkland, both of whom who supported Fuhr for the coaching job, was" }, { "docid": "21634933", "title": "", "text": "RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DRONEY, District Judge. I. Introduction James C. Jackson (“Jackson”) brought this action against the University of New Haven (“UNH”) and Deborah Chin, the Athletic Director of UNH, alleging racial discrimination in hiring in violation of 42 U.S.C. § 1981, 42 U.S.C. § 2000d (Title VI), and 42 U.S.C. § 2000e-5 (Title VII). Jackson seeks damages as well as equitable relief, costs, and attorney’s fees. Pending before the Court is Defendants’ Motion for Summary Judgment [Doc. # 14], For the following reasons, the motion is GRANTED. II. Facts In February 1999 the head football coach at the University of New Haven (“UNH”) left to take a position with the Cleveland Browns of the National Football League. This dispute arises out of the ensuing search for a new head coach at UNH. Beginning in early February of 1999, UNH posted the head coach position both internally and with the “NCAA market,” an online professional publication for university and college athletics. The postings for the head coaching position listed the following requirements: A bachelors degree is required, master’s degree preferred. Successful collegiate coaching experience required. Experience in recruiting, game coaching and knowledge of NCAA rules and regulations is essential. Def. Local R. 9(c)l statement ¶ 6 (emphasis added). Further, the duties were listed as follows: Implement and manage all aspects of a national caliber Division II football program in accordance with NCAA and university regulations. Areas of responsibility include, but are not limited to coaching, recruiting qualified student athletes, budget management, scheduling, hiring and supervising coaching staff, academically monitoring student-athletes, and promotions and fund-raising. Def. Local R. 9(c)l statement. ¶ 7. After receiving 36 applications, UNH’s Search Committee, which had been estab- bshed to select a new head coach, decided to interview six applicants-all of whom had college coaching experience and are Caucasian. Jackson, an African-American, was not among the six applicants interviewed. Jackson had no college experience, but had been a professional minor league football coach, earned several “coach of the year” honors as such a coach, and was inducted into the minor league football" }, { "docid": "7123684", "title": "", "text": "law is to the contrary, the district court properly dismissed those Counts. II. Plaintiffs Had No De Facto Tenure As Coaches Plaintiffs allege in Counts XXI and XXIII of their complaint another right of property in their coaching positions. They assert that when the school board first hired them as head coaches, it agreed to retain them as head coaches every school year thereafter until “just cause existed” for the school board to replace them, thus giving them de facto tenure. A panel of this Circuit recently held that a person under contract to coach football at a state high school has a constitutionally protected property interest in his job. Vail v. Board of Education, 706 F.2d 1435 (7th Cir.1983). But the contracts before us show that Smith and Gremer were not under coaching contracts when the school board replaced them and therefore had no de facto tenure. Attached as exhibits to plaintiffs’ complaint are copies of their written employment contracts with the school board. Those contracts did not guarantee them employment as coaches for an indefinite period of time. The first year the school board hired plaintiffs, plaintiffs each signed a written contract of employment. Smith’s contract, in which the school board agreed to pay him one salary for teaching and an additional salary for coaching football, expressly provides that Smith is to be employed “for the fiscal year 1953-54 * * * in accordance with the provisions of the Illinois Tenure Law, Article 24 of [the] School Code of Illinois.” As discussed above, those statutory provisions do not confer tenure in non-teaching positions upon school employees. Gremer’s contract, in which the school board also agreed to pay him one salary for teaching and an additional salary for serving as an assistant coach, expressly provides that “[i]t is understood that the terms of employment as stated in this letter are for the school year 1960-1961 only.” Every school year since plaintiffs were first hired, the school board has renewed their contracts of employment either by executing a new one-year contract of employment or by sending them written memoranda listing" }, { "docid": "21634957", "title": "", "text": "in that case attempted to offer statistical evidence “which purportedly demonstrate[d] a statistical imbalance in the Navy’s promotional practices.” 33 F.3d at 456. The Fourth Circuit upheld the district court’s exclusion of the statistical evidence. In so holding, the Court emphasized that “[i]n a case of discrimination in hiring or promoting, the relevant comparison is between the percentage of minority employees and the percentage of potential minority applicants in the qualified labor pool.... The mere absence of minority employees in upper-level positions does not suffice to prove a prima facie case of discrimination without a comparison to the relevant labor pool.” Id ; see also Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989) (“the proper basis for the initial inquiry in a disparate-impact case” is “between the racial composition of the qualified persons in the labor market and the persons holding at issue jobs”). 490 U.S. at 650, 109 S.Ct. 2115. Here, the article offered by Jackson makes no such comparison. It simply recites the percentages of college coaches that are African-American. It does not offer statistics on the percentage of African-Americans that would be otherwise qualified for head coaching positions, but were not hired. Finally, also in support of his disparate impact claim, the plaintiff asserts that the use of the prior college coaching experience requirement has yielded discriminatory results when applied to other athletic programs at UNH. The plaintiff contends that only one out of 23 coaches hired since 1993, when the plaintiff asserts the prior college coaching experience requirement was adopted for most head coaching positions at UNH, has been African-American. However, even if true, the Supreme Court held in Wards Cove that “[t]he percentage of nonwhite workers found in other positions in the employer’s labor force is irrelevant to the question of a prima facie statistical case of disparate impact.” 490 U.S. at 653, 109 S.Ct. 2115. Thus, the plaintiff has failed to meet his burden of establishing a prima facie case of disparate impact, and this Court also grants summary judgment as to that claim. For the" }, { "docid": "22467759", "title": "", "text": "of the year, and twice named PAC-IO coach of the year. On top of his coaching experience, Raveling also had nine years of marketing and promotional experience, and was the author of several books on basketball. When Stanley started coaching at U.S.C., three years after Raveling became head coach of the men’s team, she had seventeen years of experience coaching basketball, or fourteen years less experience than Raveling. She never coached an Olympic team. She had no marketing or promotional experience other than that she gained as a coach. She had never published a book about basketball. The EEOC Notice cited above, on which the plaintiff relies extensively, recognizes this type of affirmative defense, stating that “[sjuperior experience, education, and ability may justify pay disparities if distinctions based on these criteria are not gender based.” EEOC Notice at 23. In Stanley I, moreover, we wrote that “[e]mployers may reward professional experience and education without violating the EPA.” Stanley I, 13 F.3d at 1322. Coaches with substantially more experience and significantly superior qualifications may, of course, be paid more than their less experienced and qualified counterparts, even when it is the male coach who has the greater level of experience and qualifications. By alleging that the pay differential at issue here was due to Stanley and Raveling’s markedly different levels of experience and qualifications, the defendants have proffered a factor “other than sex,” 29 U.S.C. § 206(d)(1), to explain the differ ence in pay. See also, Marker v. Utica College of Syracuse Univ., 885 F.Supp. 378 (N.D.N.Y.1995) (nine year experience differential between women’s and men’s basketball coaches justifies pay differential). Garrett’s testimony, moreover, supports the University’s explanation. In explaining the disparity between Raveling and Stanley’s salaries, Garrett referred extensively to the coaches’ divergent levels of experience and differences in qualifications. He stressed Raveling’s thirty-one years of experience, his experience as an Olympic coach, his nine years in marketing and promotion positions, and his authorship of several books on basketball. Garrett highlighted the fact that Raveling had been twice honored as national coach of the year, twice voted PAC-10 coach of the" }, { "docid": "2343216", "title": "", "text": "WOLLMAN, Circuit Judge. Adella Gray brought this Title VII action against the University of Arkansas (University), claiming that she had been terminated from her position as academic coordinator for the Arkansas Razorbacks because of her sex. The district court found in favor of the University. Gray v. University of Arkansas, 658 F.Supp. 709 (W.D.Ark.1987). On appeal, Gray contends that the court (1) abused its discretion when it declined to recuse; (2) erred in determining that she had not presented credible direct evidence of discrimination; and (3) incorrectly applied the Title VII law of pretext. We affirm. I. After eleven football players flunked out of the University in May 1981, Gray, who had experience working with students on academic probation, proposed to head basketball coach Eddie Sutton and head football coach Lou Holtz that she design a program for the athletic department to help student athletes to achieve academic success. Although the dean of the College of Education expressed reservations about hiring Gray because he felt that she was “too pushy” and did not have good relations with the University faculty, Frank Broyles, the athletic director, hired Gray based on his policy of following the coaches’ recommendations. Beginning on March 15, 1982, Gray assisted in recruiting, conducted orientation for incoming freshmen, operated the study hall, and provided tutors for the student athletes. Gray was also responsible for keeping the necessary records to ensure that the student athletes remained eligible under the National Collegiate Athletic Association (NCAA) rules. She advised athletes on their course of study and served as liaison between the coaches and the faculty. As a nontenured faculty member, Gray was terminable at will. In May 1983, Gray asked an English instructor, who was also an athletic tutor, to change the grade of an athlete in his English class from a “D” to an “Incomplete.” During the conversation, Gray expressed the hope that the instructor could be employed again the following year as a tutor. The instructor interpreted Gray’s remark as a threat that the athletic department would not rehire him if he failed to comply with Gray’s request. After" }, { "docid": "21634942", "title": "", "text": "“not inflexible,” but that “in establishing a prima facie case the plaintiff must show that [he] applied for an available position for which [he] was qualified, but was rejected under circumstances that give rise to an inference of discrimination.” Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir.1998) (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)) (internal quotation marks omitted). The parties do not dispute that Jackson is a member of a protected class. Nor do they dispute that the defendants’ decision to hire Rizzi instead of Jackson was adverse to him. However, the parties disagree as to whether Jackson meets the second prong of McDonnell Douglas: qualification for the position. In their Mo tion for Summary Judgment, the defendants assert that Jackson was not qualified because he failed to meet an express condition of the employment, that he did not have prior NCAA coaching experience. Although he maintains that he is qualified, Jackson does not dispute that prior collegiate coaching was an expressly listed qualification for the UNH head coach position, nor does he contend that he had any prior experience coaching in college. However, Jackson’s subjective determination that he is qualified for the position is not enough to carry his burden of making out a prima facie case. The Second Circuit, in the context of an age discrimination suit, elaborated on the definition of the “qualification” requirement of the McDonnell Douglas prima facie case in Thornley v. Penton Publ’g, 104 F.3d 26 (2d Cir.1997): “As we understand this element, being ‘qualified’ refers to the criteria the employer has specified for the position.” 104 F.3d at 29. The Court further explained that broad deference should be afforded to employers in selecting hiring criteria: “Absent a showing by the plaintiff that the employer’s demands were made in bad faith ... an employer ... is not compelled to submit the reasonableness of its employment criteria to the assessment of either judge or jury.” Id. (citations omitted). See also Gonzalez v. Connecticut, 151 F.Supp.2d 174, 180-81 (D.Conn.2001) (applying Thomley" }, { "docid": "15201779", "title": "", "text": "elements of a prima facie case are the same regardless of whether a plaintiff sues under § 1983 or Title VII); Ross v. Kansas City Power & Light Co., 293 F.3d 1041, 1046 (8th Cir.2002) (laying out the elements required to raise a presumption of discrimination in a § 1981 claim and referring to these elements as the plaintiffs prima facie case). Moore bears the burden of offering evidence of discrimination, and where the evidence is equipoise, a finding for the defendant is appropriate. See Peterson v. Scott County, 406 F.3d 515, 521 (8th Cir.2005) (stating that “[t]he ultimate burden of proving discrimination remains with the plaintiff at all times”). 1. The March 2005 Assistant Principal Position In regard to the March 2005 position, the district court found that Moore did not receive the position for two reasons: (1) Reed was hired as an accommodation to her husband, who had been recruited from out of state as a football coach; and (2) Reed was more qualified than Moore. Moore contends that this finding was erroneous because the defendants themselves averred that Reed was not hired as an accommodation. Moore further contends that the School District’s citations to Reed’s qualifications were pretextual. Moore contends that the School District’s explanation that Moore was the less-qualified candidate was pretext for discrimination. To show this pretext, Moore compares the School District’s March 2005 and June 2000 failures to hire her. Moore argues that if the School District was hiring solely based on past experience that she should have been promoted in 2000 instead of Mills. In support of her argument, Moore cites to Edwards v. U.S. Postal Serv., 909 F.2d 320, 324 (8th Cir.1990). In Edwards, we reversed the district court’s finding in favor of the defendant, concluding that in a “record, filled with changing and inconsistent explanations, we can find no legitimate, non-discriminatory basis for the challenged action that is not mere pretension.” Id. Edwards, however, is distinguishable from Moore’s case. Here, there was no evidence that the School District’s explanations for the 2000 and 2005 failures to promote were inconsistent. In 2000," }, { "docid": "21634947", "title": "", "text": "F.3d at 151. The Court acknowledged that the town was “entitled to set its own criteria” for the position, but held that because the Town had “relaxed” that standard for two male firefighters, the plaintiffs lack of experience should not have resulted in summary judgment for the defendant. Id. at 151-52. Here there is no claim, and Jackson has put forth no evidence, that the defendants failed to apply the prior college coaching experience requirement uniformly to African-Americans and others. Absent any such showing, the defendants are entitled to the deference in selecting hiring criteria recognized in Thomley. Moreover, the prior college coaching experience requirement at issue here appears reasonable on its face. There is an obvious and significant nexus between the defendants’ need to select a head coach well-versed in NCAA regulations and the requirement that candidates have actual experience in college coaching. Thus, Jackson has failed to make out a prima facie case of disparate treatment in that he has failed to demonstrate that he was qualified for the position of head coach. As Jackson has failed to meet his burden, this Court grants summary judgment as to his disparate treatment claim brought pursuant to 42 U.S.C. §§ 1981, 2000d (Title VI), and 2000e-5 (Title VII). B. Disparate Impact Unlike disparate treatment, in asserting a claim of disparate impact under Title VII a plaintiff need not allege that the discrimination was intentional. Griggs v. Duke Power Co., 401 U.S. 424, 430-32, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) (“[G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built in head winds’ ”). It is enough that a facially-neutral policy, such as the prior college coaching experience requirement at issue here, be shown to have an adverse impact on a protected group. Id. at 431, 91 S.Ct. 849 (noting that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation”). However, unlike disparate treatment, the disparate impact theory of recovery is available only for claims brought pursuant to Title VII, and" }, { "docid": "22467775", "title": "", "text": "(N.D.W.Va. 1981)). . Michael McGee, USC's athletic director at the time Raveling and Stanley were hired, testified that, due to his stellar qualifications and experience, Raveling was the only candidate considered for the men's coaching job. Stanley, on the other hand, was hired only after two other candidates turned down the women’s coaching job. .Garrett concluded his explanation by noting that Raveling, the more experienced and qualified coach, had to be \"sought out by USC and lured away from his then-current employer, the University of Iowa, to accept the head coaching job of the men’s basketball team at USC.” In contrast, Garrett continued, Stanley, the less experienced and qualified coach, \"initiated contact with USC and actively pursued the employment opportunity.” . Stanley does not argue, however, that the University did not, in fact, rely on experience and qualification levels when setting the coaches’ salaries. . Stanley also contends that Raveling misrepresented to the district court that he was the author of several \"bestsellers” on the subject of basketball. Stanley, conspicuously, does not dispute the fact that she has published no books on this or any other subject, while Raveling indisputably has. PREGERSON, dissenting: By focusing on the differences between Stanley’s and Raveling’s qualifications, the majority skips over the many ways in which gender discrimination insidiously affected the University’s treatment of the women’s basketball program and Stanley as its Head Coach. The University’s halfhearted promotion of the women’s basketball program, its intensive marketing of the men’s basketball program, and the formidable obstacles Stanley faced as a woman athlete in a male-dominated profession contributed to this disparate treatment. It is hard for me to square these realities with the majority’s ruling denying Stanley relief without a trial. Therefore, I dissent." }, { "docid": "22290704", "title": "", "text": "but reasserting the remainder of the previous claims. She asserted that “[e]om-mencing in approximately 1990 and continuing at least through August of 1996, [she] has repeatedly requested a promotion.” Specifically, Brown contended that in August 1995 and August 1996 she requested a promotion during her annual evaluation. According to the second amended complaint, during her employment with Coach she was qualified for promotion to “[d]ozens to hundreds” of open positions including “secretary,” “administrative assistant” and “human resources assistant.” Brown asserted that she was told repeatedly by supervisors that she was “too valuable in her current position to promote.” Brown alleged that she was told by her supervisors that Coach “seeks to hire and promote people who have a ‘Coach look’ — the examples to whom her supervisors referred were young non-minority persons.” Further, Brown alleged that one of her supervisors made several discriminatory remarks about minorities. The second amended complaint also made allegations which were not asserted in the original EEOC charge regarding Coach’s employment practices toward minorities as a whole. Brown points to EEOC statistics which show a low proportion of minority employees in management positions at Coach. Thus, Brown claims that Coach’s hiring and promotion practices have a discriminatory impact on minorities. Coach moved to dismiss the second amended complaint again arguing that Brown had failed to state a prima facie ease because she failed to “indicate whether there was any open position at Coach for which she was qualified, she applied and was rejected, and which was given to another person.” The district court granted Coach’s motion to dismiss, dismissing the second amended complaint with prejudice. The court found that Brown had failed to state a prima facie case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), because “[njowhere ... does the Amended Complaint allege any specific position for which plaintiff applied, was qualified, and was rejected.” The court noted that in the hearing on the motion to dismiss, Brown’s counsel conceded that “ ‘[tjhere is no allegation that Ms. Brown asked at a specific time for" }, { "docid": "17212868", "title": "", "text": "action, and (4) he was treated less favorably because of his membership in that protected class than were other similarly situated employees who were not members of the protected class, under nearly identical circumstances. Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir.2009). As noted above, Minnis has satisfied the first two elements of the prima facie case. Further, it is well-established that termination qualifies as an adverse employment action. See Burlington Industries, Inc.,. 524 U.S. at 768, 118 S.Ct. 2257. Thus, the inquiry turns on whether any of the head coaches identified by Minnis were similarly situated to him. In opposition to LSU’s motion, Minnis failed to point to evidence detailing the job responsibilities, duties, and expectations or competitive success of the head coaches of other LSU sports. Rather, he merely points to the differences in salaries, (see Doc. 101 at pp. 9-10), and then cites deposition testimony of Athletic Director, Joseph Alieva, (“Alieva”) confirming that comparisons to other sports is unavailing. (See Doc. 70-1 at p. 62) (“[E]aeh coach gets paid for their sport. You don’t compare women’s tennis and women’s soccer. They are different sports, a different market.”). Thus, the Court has not been provided with suffi- dent evidence to evaluate whether the head coaches of other sports are “similarly situated” to Minnis. However, the record does contain sufficient facts to conduct the “similarly situated” analysis with respect to Jeff Brown, the men’s tennis coach. Minnis argues that his competition record and his number of NCAA violations were comparable to that of Brown (who is white), yet Brown was not terminated. (Doc. 101 at pp. 11-12). Minnis also contends that “Brown had not been awarded and recognized by his peers as had Min-nis.” (Doc. 101 at p. 11). However, there are several differences between Minnis and Brown, the most notable being that since Brown’s hire, the men’s tennis team has finished with a higher national ranking than the women’s team every year save one. (Doc. 59-2 at pp. 25-26). In addition, Brown was hired in 1998, seven years after Minnis. (Doc. 59-2 at" }, { "docid": "3029603", "title": "", "text": "considered in light of the historical background of this litigation, proved a prima facie case of purposeful discrimination on the basis of race that, if unrebutted, would have supported a district court’s grant of the requested relief. However, additional evidence presented at the district court hearing rebutted the prima facie case of employment discrimination and demonstrated conclusively that the lack of blacks hired since 1970 for positions on both the athletic coaching and the central office staffs resulted not from purposeful discrimination but solely from a lack of black applicants. John S. Wood, the Superintendent of Education for Washington County, Alabama, testified that the Board in 1978 received the first application from a black for a head coaching position since 1970. The Board appointed the applicant, David Davis, to be head coach at McIntosh High School for the 1978-79 school year. Wood’s testimony additionally disclosed the misleading nature of the statistical evidence presented by the NEA with respect to the athletic coaching staff. By focusing solely on those individuals hired since 1970 specifically as head or assistant athletic coaches, the statistical proof failed to reflect the true racial composition of the coaching staff. The evidence presented to the district court showed that in 1978 the staff contained a significant number of blacks who either were hired prior to 1970 or who, although hired for specific positions other than head or assistant coach, served as and received supplemental remuneration reserved for athletic coaches. Superintendent Wood testified that it was not until May 1978 when the Board received the first application from a black for a position on the central office staff. In the instant case, the district court properly declined to order the affirmative relief requested by the NEA because the plaintiff-intervenor failed to carry its burden of proving the requisite unconstitutional discrimination. The district court correctly observed that the evidence fails to disclose “whether the lack of black applications resulted from a lack of qualified blacks in the area, or from a policy or practice on the Board’s part in not advertising its openings to the general public.” 456 F.Supp." }, { "docid": "12456356", "title": "", "text": "519 F.2d 126, 128 (8th Cir. 1975). That appellant had no legitimate expectation of continued employment under the Arkansas system is reinforced by the Arkansas Supreme Court’s opinion in Nethercutt v. Pulaski County Special School District, 251 Ark. 836, 841, 475 S.W.2d 517, 521 (1972), which invalidated a teacher tenure policy voluntarily adopted by a school board. The court held that the board, “having only such authority as is granted it by law, cannot by the adoption of a teacher tenure policy give to a teacher a tenure beyond or greater than that authorized by the law limiting such employment to an annual contract.” Id. . The rejection of appellant’s application for two positions, an assistant principalship and the high school head football coach position, followed by the hiring of white persons in those positions does not support a conclusion of racial discrimination, because in each case the appellant was not qualified for the position according to the standards promulgated by the board. Appellant applied for the position of dean of men for the junior high school when it became vacant in the 1971-72 school year. He was qualified for that position. Instead of filling that vacancy on a permanent basis, the administration decided to adopt a system having various principals for each grade. The new position of assistant principal required educational qualifications not possessed by appellant. The white person hired for the position possessed those qualifications. With respect to the head coaching position, the school district’s standards provided for certain experience requirements which appellant did not possess. These included experience in coaching at the high school level. The white person hired in the position had the requisite experience. Finally, we are not persuaded by appellant’s argument that the failure of the board to discipline the white assistant coach of the basketball team who accompanied the team to the state tournament evidences racial discrimination. The assistant coach was on the trip as a chaperone and did not assert or have any responsibility over the team." }, { "docid": "21634946", "title": "", "text": "and a master’s degree, when she had not alleged that she met the specific criteria in the job postings); Matos v. Bristol Bd. of Educ., 204 F.Supp.2d 375, 380-81 (D.Conn.2002)(finding that the plaintiff did not meet the qualification prong of prima facie racial discrimination case when stated job listing under the collective bargaining agreement was for “most senior qualified applicant” and the plaintiff was not the most senior of qualified applicant pool); Kratz v. College to Staten Island, No. Civ.A 96-CV-0680DGT, 2000 WL 516888, at *2 (E.D.N.Y. Mar.15, 2000)(reasoning that the plaintiff had not made out a prima facie case under Title VII because “the second prong [regarding qualification] requires [the plaintiff] to meet the posted job qualifications”). There are, however, limits to an employer’s latitude in selecting hiring criteria. For example, in Howley v. Town of Stratford, 217 F.3d 141 (2d Cir.2000) the Second Circuit rejected the defendant’s argument that the plaintiff, a female firefighter, was “ineligible” for a-promotion to assistant-chief because she did not have the required four years of line-officer experience. 217 F.3d at 151. The Court acknowledged that the town was “entitled to set its own criteria” for the position, but held that because the Town had “relaxed” that standard for two male firefighters, the plaintiffs lack of experience should not have resulted in summary judgment for the defendant. Id. at 151-52. Here there is no claim, and Jackson has put forth no evidence, that the defendants failed to apply the prior college coaching experience requirement uniformly to African-Americans and others. Absent any such showing, the defendants are entitled to the deference in selecting hiring criteria recognized in Thomley. Moreover, the prior college coaching experience requirement at issue here appears reasonable on its face. There is an obvious and significant nexus between the defendants’ need to select a head coach well-versed in NCAA regulations and the requirement that candidates have actual experience in college coaching. Thus, Jackson has failed to make out a prima facie case of disparate treatment in that he has failed to demonstrate that he was qualified for the position of head coach." }, { "docid": "21634941", "title": "", "text": "under Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105, (2000), after the plaintiff offers evidence to show that the defendant’s asserted non-discriminatory reason for the hiring is pretextual, the evidence that established the prima facie case will be sufficient to survive a summary judgment motion. 530 U.S. at 148, 120 S.Ct. 2097 (“a plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”). Here, the burden-shifting framework does not reach this stage because Jackson has failed to establish a prima facie case. To establish a prima facie case of discrimination, a plaintiff must show (1) membership in a protected class, (2) qualification for the employment, (3) an adverse employment decision, and (4) circumstances that give rise to an inference of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. See also Wein-stock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.2000). Courts have acknowledged this framework is “not inflexible,” but that “in establishing a prima facie case the plaintiff must show that [he] applied for an available position for which [he] was qualified, but was rejected under circumstances that give rise to an inference of discrimination.” Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir.1998) (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)) (internal quotation marks omitted). The parties do not dispute that Jackson is a member of a protected class. Nor do they dispute that the defendants’ decision to hire Rizzi instead of Jackson was adverse to him. However, the parties disagree as to whether Jackson meets the second prong of McDonnell Douglas: qualification for the position. In their Mo tion for Summary Judgment, the defendants assert that Jackson was not qualified because he failed to meet an express condition of the employment, that he did not have prior NCAA coaching experience. Although he maintains that he is qualified, Jackson does not dispute that prior collegiate coaching was" } ]

[ { "docid": "22615777", "title": "", "text": "v. North American Rockwell Corp., 482 F. 2d 569 (CA9 1973). United Steelworkers of America v. American Mfg. Co., 363 U. S. 564 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U. S. 574 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U. S. 593 (1960). In Textile Workers Union v. Lincoln Mills, 353 U. S. 448 (1957), this Court held that a grievance-arbitration provision of a collective-bargaining agreement could be enforced against unions and employers under § 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U. S. C. § 185. The Court noted that the congressional policy, as embodied in §203 (d) of the LMRA, 61 Stat. 154, 29 U. S. C. § 173 (d), was to promote industrial peace and that the grievance-arbitration provision of a collective agreement was a major factor in achieving this goal. 353 U. S., at 455. In the Steelworkers trilogy, the Court further advanced this policy by declaring that an order to arbitrate will not be denied “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, at 582-583. The Court also stated that “so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” United Steelworkers of America v. Enterprise Wheel & Car Corp., supra, at 599. And in Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965), the Court held that grievance-arbitration procedures of a collective-bargaining agreement must be exhausted before an employee may file suit to enforce contractual rights. For the reasons stated in Parts III, IV, and V of this opinion, we hold that the federal policy favoring arbitration does not establish that an arbitrator’s resolution of a contractual claim is dispositive of a statutory claim under Title VII. See, e. g., 42 U. S. C. §1981 (Civil Rights Act of 1866); 42 U. S." } ]

[ { "docid": "21072498", "title": "", "text": "independent of a collective bargaining agreement’s grievance and arbitration procedures.” Malin, Arbitrating Statutory Employment Claims in the Aftermath of Gilmer, 40 St. Louis U.L.J. 77, 84 (1996); see, e.g., Varner v. National Super Markets, 94 F.3d 1209, 1213 (8th Cir.1996) (holding employee not required to exhaust grievance and arbitration remedies under collective bargaining agreement before bringing suit under Title VII), cert. denied, — U.S.-, 117 S.Ct. 946, 136 L.Ed.2d 835 (1997); Tran v. Tran, 54 F.3d 115, 117 (2d Cir.1995) (“There is nothing in Gilmer which appears to throw anything but favorable light upon the continuing authority of [Alexander and its progeny].”), cert. denied, — U.S. -, 116 S.Ct. 1417, 134 L.Ed.2d 542 (1996); Bintner v. Burlington Northern, 857 F.Supp. 1484, 1488 (D.Wyo.1994) (“There is nothing in Gilmer to suggest that the Court abandoned or even reconsidered its efforts to protect individual statutory rights from the give-and-take of the collective-bargaining process.”). Although the Tenth Circuit has interpreted Gilmer as authorizing compulsory arbitration of Title VII claims, Metz v. Merrill Lynch, Pierce, Fenner & Smith, 39 F.3d 1482, 1487 (10th Cir.1994) (plaintiff completed securities registration application which contained compulsory arbitration clause), it has never addressed the precise question at issue here (i.e., whether a Title VII plaintiff must comply with a grievance procedure outlined in union’s collective bargaining agreement prior to filing suit in federal court against employer). For the following reasons, we adopt the majority view. The context in which an arbitration clause arises cannot be ignored. In Alexander, the clause was contained in a collective bargaining agreement; in Gilmer, it was contained in an individual application for registration as a securities dealer. “Nothing in Gilmer suggests that the Court abandoned its concern about the inherent conflicts between group goals and individual rights that exist in the give-and-take of the collective bargaining process.” Randolph v. Cooper Industries, 879 F.Supp. 518, 521 (W.D.Pa.1994). Although plaintiffs like the one in Gilmer at least have “the theoretical possibility of negotiating a separate deal with their employers” that does not require arbitration, unionized employees have no such choice. 40 St. Louis. U.L.J. at 87." }, { "docid": "21072492", "title": "", "text": "plaintiff. In addition, we conclude the district court abused its discretion in refusing to instruct the jury on the basis for employer liability provided in the second clause of § 219(2)(d). Accordingly, the judgment in favor of Potash and against plaintiff on her Title VII claim is reversed, and the ease is remanded to the district court for further proceedings. III. Cross-Appeal During the period of plaintiffs employment, Potash allegedly operated under a Collective Bargaining Agreement (CBA) with Steelworkers Union, Local # 177, of which plaintiff was a member. According to Po tash, the CBA contained a grievance procedure which plaintiff should have invoked pri- or to filing suit against Potash. Because plaintiff failed to do so, Potash argues she is barred from pursuing her Title VII claim in federal court. The seminal decision concerning the “proper relationship between federal courts and the grievance-arbitration machinery of collective-bargaining agreements in the resolution and enforcement of an individual’s rights to equal employment opportunities -under Title VII” is Alexander v. Gardner-Denver Co., 415 U.S. 36, 38, 94 S.Ct. 1011, 1015, 39 L.Ed.2d 147 (1974). Harrell Alexander was a black, union-represented employee who had been fired by Gardner-Denver for allegedly producing too many defective or unusable parts. Claiming his discharge was racially motivated, Alexander filed a grievance alleging a violation of the nondiscrimination clause in the collective bargaining agreement between his union and Gardner-Denver. Following the arbitration hearing, the arbitrator denied the grievance without addressing the racial discrimination claim. Alexander then filed a Title VII action in federal district court based upon the same facts alleged in his grievance. Gardner-Denver moved to dismiss Alexander’s complaint on the grounds of election of remedies and waiver. The district court, later affirmed by the court of appeals, granted summary judgment to Gardner-Denver on the ground that Alexander was bound by the prior adverse decision of the arbitrator. The Supreme Court reversed, concluding Alexander’s statutory right to trial under Title VII was not foreclosed by his earlier submission of a discrimination claim to arbitration. “The [Gardner-Denver] Court found that in enacting Title VII, Congress had granted individual employees" }, { "docid": "13260936", "title": "", "text": "United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960). Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th Cir., 1970), followed by Alexander v. Gardner-Denver Co., 466 F.2d 1209 (10th Cir., 1972), held that this arbitration policy requires dismissal of an employment discrimination action under Chapter YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, where the grievance already has been adjudicated finally by arbitration. Dewey held: “. . . Any other construction would bring about the result present in the instant case, namely, that the employer, but not the employee, is bound by the arbitration. “This result could sound the death knell to arbitration of labor disputes, which'has been so usefully employed in their settlement. Employers would not be inclined to agree to arbitration clauses in collective bargaining agreements if they provide only a one-way street, i. e., that the awards are binding on them but not on their employees. “The tremendous increase in civil rights litigation leads one to the belief that the Act will be used more fre quently in labor disputes. Such use ought not to destroy the efficacy of arbitration.” 429 F.2d 332 This view recently was rejected by the Supreme Court, however, when it reversed the Tenth Circuit in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (February 19, 1974), holding that, in an action brought under Chapter VII of the 1964 Civil Rights Act, national policy condemning discriminatory employment practices requires an exception to the rule of arbitral finality. After reviewing in detail all history of arbitration and employment discrimination, the Court said: “We think, therefore, that the federal policy favoring arbitration of labor disputes and the federal policy against discriminatory employment practices can best be accommodated by permitting an employee to pursue fully both his remedy under the grievance-arbitration clause of a eollectivebargaining agreement and his cause of action under Title VII. The federal court should consider the employee’s claim de novo. The arbitral decision may be admitted as evidence and" }, { "docid": "14175438", "title": "", "text": "bargaining agreement (“CBA”) entered into between the Union and Art Iron. While an employee of Art Iron, Block developed carpal tunnel syndrome. After developing carpal tunnel syndrome, Block did not perform any work for Art Iron for a period of twelve consecutive months and was terminated. After being terminated, Block filed a grievance pursuant to the CBA alleging that the termination constituted a discriminatory act and seeking reversal of Art Iron’s decision to terminate his employment. The three-step grievance procedure resulted in a finding of no contract violation. The CBA contains an arbitration clause which states, in part, that: (A) Any grievance or dispute between the Company and the Union or between the Company and an employee(s) that has been processed in accordance with the provisions of the preceding section of this agreement but not satisfactorily settled shall, upon the written request of either party to this agreement, be submitted to arbitration by an impartial arbitrator to be selected by mutual agreement of the parties. CBA at 20. The Union initiated, but later withdrew, its request to arbitrate Block’s dispute. In support of its motion, Art Iron argues that it is entitled to'summary judgment because Block failed to comply with the arbitration provision of the CBA. Art Iron relies on Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d, 26 (1991), and Austin v. OwensBrockway Glass Container, 844 F.Supp. 1103 (W.D.Va.1994). Before discussing Gilmer and Austin, a discussion of earlier Supreme Court ease law on the issue of enforcement of arbitration clauses in collective bargaining agreements is appropriate. The leading Supreme Court case is Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). In Gardner-Denver, the Court permitted an employee who had exhausted grievance procedures available under a collective bargaining agreement to bring a Title VII claim into federal court without requiring deference to the arbitral decision against him. Id. at 48, 94 S.Ct. at 1020. The Court stated that: We are also unable to accept the proposition that petitioner waived his cause of action under Title VII. To begin, we" }, { "docid": "21072497", "title": "", "text": "concern therefore was the tension between collective representation and individual statutory rights, a concern not applicable to the present case. Finally, those cases were not decided under the FAA which, as discussed above, reflects a “liberal federal policy favoring arbitration agreements.” Therefore, those eases provide no basis for refusing to enforce Gilmer’s agreement to arbitrate his ADEA claim. Id. at 35, 111 S.Ct. at 1657 (internal citation omitted). Since Gilmer, employer/defendants have argued that Gilmer effectively overruled Alexander and now requires plaintiffs to comply with a collective bargaining agreement’s grievance and arbitration procedures prior to filing suit in federal court. To date, only the Fourth Circuit has accepted this argument, Austin v. Owens-Brockway Glass Container, 78 F.3d 875 (4th Cir.) (affirming grant of summary judgment to employer because plaintiff failed to submit Title VII and ADA claims to mandatory arbitration under collective bargaining agreement), cert. denied, — U.S. -, 117 S.Ct. 432, 136 L.Ed.2d 330 (1996), while the majority view is that Alexander and its progeny “remain good law and that statutory employment claims are independent of a collective bargaining agreement’s grievance and arbitration procedures.” Malin, Arbitrating Statutory Employment Claims in the Aftermath of Gilmer, 40 St. Louis U.L.J. 77, 84 (1996); see, e.g., Varner v. National Super Markets, 94 F.3d 1209, 1213 (8th Cir.1996) (holding employee not required to exhaust grievance and arbitration remedies under collective bargaining agreement before bringing suit under Title VII), cert. denied, — U.S.-, 117 S.Ct. 946, 136 L.Ed.2d 835 (1997); Tran v. Tran, 54 F.3d 115, 117 (2d Cir.1995) (“There is nothing in Gilmer which appears to throw anything but favorable light upon the continuing authority of [Alexander and its progeny].”), cert. denied, — U.S. -, 116 S.Ct. 1417, 134 L.Ed.2d 542 (1996); Bintner v. Burlington Northern, 857 F.Supp. 1484, 1488 (D.Wyo.1994) (“There is nothing in Gilmer to suggest that the Court abandoned or even reconsidered its efforts to protect individual statutory rights from the give-and-take of the collective-bargaining process.”). Although the Tenth Circuit has interpreted Gilmer as authorizing compulsory arbitration of Title VII claims, Metz v. Merrill Lynch, Pierce, Fenner & Smith, 39" }, { "docid": "23258246", "title": "", "text": "(remedies under Title VII and CBAs are independent); LaChance v. Northeast Publ’g, Inc., 965 F.Supp. 177, 184 (D.Mass.1997). This leaves the question whether the officers were required to submit their FLSA claims to arbitration under either of the collective bargaining agreements. They were not. Neither CBA contained a “clear and unmistakable waiver” of the officers’ right to a judicial forum for FLSA claims. Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 79-80, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998). In Wright, the Supreme Court noted the “obvious[ ] ... tension” in its arbitration jurisprudence between older cases holding that CBAs can never prospectively bind employees to arbitrate federal statutory claims, see Barrentine, 450 U.S. at 745-46, 101 S.Ct. 1437 (FLSA claims); Gardner-Denver, 415 U.S. at 51-52, 94 S.Ct. 1011 (Title VII claims), and more recent cases holding that employees can be compelled to submit some federal statutory claims to arbitration pursuant to a valid arbitration clause in a bilateral employment contract, see, e.g., Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 122-24, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001); Gilmer, 500 U.S. at 27-29, 111 S.Ct. 1647. See 525 U.S. at 76, 119 S.Ct. 391. The Wright Court declined to resolve this tension, holding that even assuming a CBA can waive an employee’s right to a federal forum, any such waiver must at a minimum be “dear and unmistakable.” Id. at 79-81, 119 S.Ct. 391; see also id. at 80, 119 S.Ct. 391 (“[Wjhether or not Gardner-Denver’s seemingly absolute prohibition of union waiver of employees’ federal forum rights survives Gilmer, Gardner-Denver at least stands for the proposition that the right to a federal judicial forum is of sufficient importance to be protected against less-than-explicit union waiver in a CBA.”). No such clear and unmistakable waiver appears in the CBAs in this case. The arbitration provision in each agreement applies only to “grievances,” which in turn are defined as allegations that the Town violated the CBA. Not a single reference appears to arbitration of statutory claims, let alone a clear and unmistakable waiver of a judicial forum for such" }, { "docid": "6052424", "title": "", "text": "in this case, because the Agreement did not authorize the arbitrator to decide federal statutory claim issues. It is true that Brisentine, unlike the plaintiff in Alexander, did not first submit any contract-based claims to arbitration. However, as the Alexander Court noted, “the actual submission of [the] grievance to arbitration ... does not alter the situation.” 415 U.S. at 52, 94 S.Ct. at 1021; see also id. at 52, 94 S.Ct. at 1022 (“[Statutory and contractual rights] have legally independent origins and are equally available to the aggrieved party.”); Varner v. National Super Markets, Inc., 94 F.3d 1209, 1213 (8th Cir.1996) (“[T]he United States Supreme Court has held that the pursuit of a claim through grievance and binding arbitration under a [collective bargaining agreement] does not preclude a civil suit under Title VII, and we believe that the same reasoning applies to a plaintiff who has chosen not to participate in the grievance procedure.”) (citations omitted), cert. denied, — U.S. -, 117 S.Ct. 946, 136 L.Ed.2d 835 (1997). For all of those reasons, the first distinction the Supreme Court drew between Alexander and Gilmer places the present case on the Alexander side of the line. So does the second distinction, which has to do with the individual versus collective nature of the agreements in the two cases. An individual contractual agreement to submit a claim to arbitration was enforced in Gilmer, a collective bargaining agreement to do so was not enforced in Alexander. The Gilmer Court noted that, in the context of collective bargaining agreements, employee-claimants are represented by their unions in arbitration proceedings. See Gilmer, 500 U.S. at 35, 111 S.Ct. at 1657. As a result, there is a “potential disparity in interests between a union and an employee” regarding the prosecution of the employee’s individual statutory rights. Id. That disparity weighed against the enforcement of arbitration clauses as the employee’s exclusive remedy for individual statutory rights. See Alexander, 415 U.S. at 52, 94 S.Ct. at 1021-22; see also Pryner, 109 F.3d at 362-63. The Gilmer Court explained that the concern about the conflict between collective representation and individual" }, { "docid": "6640817", "title": "", "text": "applied to contracts made by employees individually. Consequently, Gilmer does not alter or undermine the protection established in Gardner-Denver against waiver of individual statutory rights through collective-bargaining agreements.”); see also Pryner, 109 F.3d at 364 (Posner, J.) (“The conservative reading of Gilmer is that it just pruned some dicta from Alexander—and it certainly cannot be taken to hold that collective bargaining agreements can compel the arbitration of statutory rights.”); Varner v. National Super Markets, Inc., 94 F.3d 1209, 1213 (8th Cir.1996), cert, denied — U.S. -, 117 S.Ct. 946, 136 L.Ed.2d 835 (1997); Harrison, 112 F.3d at 1453-54; Bintner v. Burlington Northern, Inc., 857 F.Supp. 1484, 1488 (D.Wyo.1994); Araiza v. National Steel and Shipbuilding Co., 973 F.Supp. 963, 967 (S.D.Cal.1997). In the outlying Fourth Circuit decision in Austin, Linda Austin filed -suit in federal court alleging that her employer, Ownes-Brockway Glass Container, Inc., violated Title VII and the ADA. There, Austin’s employment was governed by a collective bargaining agreement that provided for mandatory arbitration of all disputes between all employees and the employer. The Fourth Circuit stated that Gilmer “made clear that agreements to arbitrate statutory claims are enforceable.” 78 F.3d at 880. Thus, the court held that Austin’s failure to submit her statutory claims under the grievance-arbitration procedure in the collective bargaining agreement barred her from filing suit in federal court. Id. at 885. Citing six eases that compelled arbitration, the court reasoned that “the only difference between these six cases and this case is that this case arises in the context of a collective bargaining agreement.” Austin, 78 F.3d at 885 (citations omitted). This Court, however, agrees with the Austin dissent that “the only difference makes all the difference.” Id. at 886 (Hall, C.J., dissenting); see also Hill v. American Nat’l Can Co./Foster Forbes Glass Div., 952 F.Supp. 398, 404 (N.D.Tex.1996); Buckley v. Gallo Sales Co., 949 F.Supp. 737, 743 (N.D.Cal.1996); Araiza, 973 F.Supp. at 967-69. The context in which an arbitration clause arises is critical. In Alexander, the clause was contained in a collective bargaining agreement, while in Gilmer, it was contained in an individual application for" }, { "docid": "6132035", "title": "", "text": "wages, hours, and terms and conditions of public employment covered by the agreement” and that, “If the agreement provides for a final and binding arbitration of grievances, public employers, employees, and employee organizations are subject solely to that grievance procedure ...” That section also provides that, “Laws pertaining to civil rights ... prevail over conflicting provisions of agreements between employee organizations and public employers.” The CBA further provides that: This master contract supersedes and prevails over all statutes of the State of Ohio (except as specifically set forth in Section 4117.10(A) of the Ohio Revised Code), and all policies, rules, and regulations of the Board, (the “Supremacy” provision, CBA § 105). 1. Title VII Claims In the opinion of this Court, plaintiff is not required to submit her Title VII claims to arbitration and be bound by the arbitrator’s decision. In Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) the Supreme Court specifically held that a plaintiff who had pursued a racial discrimination claim through arbitration under a collective bargaining agreement could still bring a Title VII claim in federal court; See also, Barrentine v. Arkansas-Best Freight Sys. Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981), cert. denied, 471 U.S. 1054, 105 S.Ct. 2116, 85 L.Ed.2d 480 (1984) (plaintiffs who had pursued a wage claim in grievance procedure under a collective bargaining agreement could still bring a Fair Labor Standards Act claim in federal court); McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1985) (plaintiff who had pursued wrongful discharge claim through arbitration under a collective bargaining agreement could still bring a § 1983 claim in federal court); but cf., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (plaintiff required to submit an Age Discrimination in Employment Act claim to arbitration pursuant to an employment agreement). In Gilmer, the Supreme Court held that an arbitration clause in a registration form required for employment as a securities dealer and Rule 347 of the New York Stock Exchange Rules," }, { "docid": "22338072", "title": "", "text": "summary judgment with respect to some of respondents’ defenses. A Magistrate Judge recommended that the District Court dismiss the ease without prejudice because Wright had failed to pursue the grievance procedure provided by the CBA. The District Court adopted the report and recommendation and subsequently rejected Wright’s motion for reconsideration. The United States Court of Appeals for the Fourth Circuit affirmed, see No. 96-2850 (July 29, 1997), judgt. order reported at 121 F. 3d 702, relying upon its earlier decision in Austin v. Owens-Brockway Glass Container, Inc., 78 F. 3d 875, cert. denied, 519 U. S. 980 (1996), which in turn had relied upon our decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 (1991). We granted certiorari, 522 U. S. 1146 (1998). In this ease, the Fourth Circuit concluded that the general arbitration provision in the CBA governing Wright’s employment was sufficiently broad to encompass a statutory claim arising under the ADA, and that such a provision was enforceable. The latter conclusion brings into question two lines of our case law. The first is represented by Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), which held that an employee does not forfeit his right to a judicial forum for claimed discriminatory discharge in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq., if “he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement.” 415 U. S., at 49. In rejecting the argument that the doctrine of election of remedies barred the Title VII lawsuit, we reasoned that a grievance is designed to vindicate a “contractual right” under a CBA, while a lawsuit under Title VII asserts “independent statutory rights accorded by Congress.” Id., at 49-50. The statutory cause of action was not waived by the union’s agreement to the arbitration provision of the CBA, since “there can be no prospective waiver of an employee’s rights under Title VII.” Id., at 51. We have followed the holding of Gardner-Denver in deciding the effect of CBA arbitration" }, { "docid": "6132056", "title": "", "text": "provisions of § 705 of the CBA would itself constitute a clear violation of the CBA. The CBA contemplates that, in the case of a conflict between a provision of the CBA and any statute, “that provision shall automatically be deemed invalid.” CBA § 105(2). It is apparent, therefore, that the CBA contemplated a legal action, as the present one, which challenges a provision of the CBA as being contrary to law, in this case contrary to the FMLA. This Court agrees with the court in McGinnis v. Wonder Chem. Co., 1995 WL 756590 (E.D.Pa.1995), which held that plaintiffs claims under the ADA and FMLA were not preempted by an arbitration provision in the collective bargaining agreement. Decisions in this area have branched in two directions: one following the reasoning of Gilmer v. Interstate-Johnson Lane Corp., 500 U.S. 20 [55 FEP Cases 1116] (1991), which generally involves employment contracts between individual employees and their employers and the Federal Arbitration Act; and one adhering to the opinion in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 [7 FEP Cases 81] (1974), which is applied to most cases involving collective bargaining agreements and not involving the Federal Arbitration Act. The facts of this case place it squarely in line with Gardner-Denver and its progeny: there is a collective bargaining agreement (“CBA”) with a general arbitration provision, there is no incorporation of or reference to the Federal Arbitration Act, and plaintiff has brought this claim in an effort to secure his statutory rights, and not to settle a dispute governed solely by the CBA. “In holding that collective bargaining agreements do not require employees to submit statutory claims to grievance procedure, the Court made clear that contractual disputes arising out of the collective bargaining agreement itself are distinct and separate from an employee’s statutory rights.” Randolph v. Cooper Indus., 879 F.Supp. 518 [68 FEP Cases 1465] (W.D.Pa.1994). Thus, defendant’s argument for preclusion of plaintiffs statutory claims by the CBA is without merit. Id. at fn. 1, p. 873. 4. § 1983 Claims Finally, on the authority of McDonald" }, { "docid": "2346148", "title": "", "text": "employment-related disputes. Section 1 of Article XV provides specifically that disputes involving “the interpretation, application of, or compliance with the provisions of [the] agreement” are grievances to be resolved by the machinery prescribed by Article XV. After a hearing on the plaintiff’s application for a preliminary injunction and the defendants’ motion to dismiss, the court has concluded that it lacks the necessary jurisdiction to entertain this action since the plaintiff has failed to exhaust the grievance-arbitration provisions of the national agreement with respect to the alleged violations of said contract. As enunciated by the United States Supreme Court in Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), and the Steelworkers triology, it is the fed eral policy to favor arbitration of labor disputes. In furtherance of this policy the Supreme Court held that the grievance-arbitration procedures of a collective-bargaining agreement must be exhausted before an employee may file suit to enforce contractual rights. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614,13 L.Ed.2d 580 (1965). The issue presented to the court in the instant case is one involving “the interpretation, application of, or compliance with the provisions” of the collective-bargaining agreement, and, as such, it is to be resolved by the grievance-arbitration apparatus contained within the agreement. This court’s potential jurisdiction as to this dispute lies only when the grievance-arbitration procedures have been exhausted. Such procedures have yet to be exhausted and therefore the court finds itself compelled to dismiss the plaintiff’s action for lack of jurisdiction. The United States Attorney is requested to prepare and submit appropriate order. . United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960) ; United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) ; United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). . See Alexander v. Gardner-Denver Co., 415 U.S. 36, 46, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1973) ; Andrews v." }, { "docid": "6640816", "title": "", "text": "Supreme Court, however, has taken note of the harmony between the two decisions: “Gilmer emphasized its basic consistency with our unanimous decision in [Alexander].” Livadas v. Bradshaw, 512 U.S. 107, 128 n. 21, 114 S.Ct. 2068, 2080 n. 21, 129 L.Ed.2d 93 (1994). In addition, the clear majority view, including the view of the Second Circuit, is that Alexander and its progeny remain good law, and thus an employee need not exhaust grievance and arbitration procedures under a collective bargaining agreement before bringing suit under Title VII. See Tran v. Tran, 54 F.3d 115, 117 (2d Cir.1995) (“There is nothing in Gilmer which appears to throw anything but favorable light upon the continuing authority of [Alexander and its progeny].”), cert, denied, — U.S. -, 116 S.Ct. 1417, 134 L.Ed.2d 542 (1996); Humphrey, 901 F.Supp. at 709-10 (“[T]he Second Circuit has held explicitly that Gilmer has not changed the validity of Barren-tine and implicitly that Gardner-Denver has remained unchanged as well.”) (citation omitted); Claps v. Moliterno Stone Sales, Inc., 819 F.Supp. 141, 147 (D.Conn.1993) (“Gilmer simply applied to contracts made by employees individually. Consequently, Gilmer does not alter or undermine the protection established in Gardner-Denver against waiver of individual statutory rights through collective-bargaining agreements.”); see also Pryner, 109 F.3d at 364 (Posner, J.) (“The conservative reading of Gilmer is that it just pruned some dicta from Alexander—and it certainly cannot be taken to hold that collective bargaining agreements can compel the arbitration of statutory rights.”); Varner v. National Super Markets, Inc., 94 F.3d 1209, 1213 (8th Cir.1996), cert, denied — U.S. -, 117 S.Ct. 946, 136 L.Ed.2d 835 (1997); Harrison, 112 F.3d at 1453-54; Bintner v. Burlington Northern, Inc., 857 F.Supp. 1484, 1488 (D.Wyo.1994); Araiza v. National Steel and Shipbuilding Co., 973 F.Supp. 963, 967 (S.D.Cal.1997). In the outlying Fourth Circuit decision in Austin, Linda Austin filed -suit in federal court alleging that her employer, Ownes-Brockway Glass Container, Inc., violated Title VII and the ADA. There, Austin’s employment was governed by a collective bargaining agreement that provided for mandatory arbitration of all disputes between all employees and the employer. The Fourth" }, { "docid": "6132034", "title": "", "text": "file a grievance on behalf of plaintiff, which was based on the refusal of the superintendent to permit plaintiff to return to work on April 26, 1994; the grievance proceeded to arbitration. The grievance involved a dispute regarding the proper interpretation of the language in § 705 of the CBA and not the application of the FMLA or any other statute. The arbitrator held that grievance was not timely filed, but in what the arbitrator himself described as dictum, he concluded that the language of § 705 was clear and that it “most likely supports the Board’s position that it was under no obligation to allow Ms. O’Hara to return midyear.” It is the defendants’ position that all of plaintiff’s claims are subject to the grievance procedures of the CBA and that, pursuant to those procedures and Ohio law, summary judgment should be rendered against plaintiff. Defendants point out that O.R.C. § 4117.10(A) provides, in part, that, “an agreement between a public employer and an exclusive representative entered into pursuant to this chapter governs the wages, hours, and terms and conditions of public employment covered by the agreement” and that, “If the agreement provides for a final and binding arbitration of grievances, public employers, employees, and employee organizations are subject solely to that grievance procedure ...” That section also provides that, “Laws pertaining to civil rights ... prevail over conflicting provisions of agreements between employee organizations and public employers.” The CBA further provides that: This master contract supersedes and prevails over all statutes of the State of Ohio (except as specifically set forth in Section 4117.10(A) of the Ohio Revised Code), and all policies, rules, and regulations of the Board, (the “Supremacy” provision, CBA § 105). 1. Title VII Claims In the opinion of this Court, plaintiff is not required to submit her Title VII claims to arbitration and be bound by the arbitrator’s decision. In Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) the Supreme Court specifically held that a plaintiff who had pursued a racial discrimination claim through arbitration under a collective" }, { "docid": "22951034", "title": "", "text": "statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA.” 500 U.S. at 26, 111 S.Ct. at 1652. The Court distinguished its holding in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), that arbitration procedures under a collective bargaining agreement (CBA) do not preclude a civil remedy for a violation of Title VII. See Alexander, 415 U.S. at 59-60, 94 S.Ct. at 1025. One concern with enforcing arbitration under a CBA is that the arbitration agreement is obtained by a union that represents the majority’s interests rather than the individual’s interests, which creates “tension between collective representation and individual statutory rights.” Gilmer, 500 U.S. at 35, 111 S.Ct. at 1657; see Alexander, 415 U.S. at 51, 94 S.Ct. at 1021; Pryner v. Tractor Supply Co., 109 F.3d 354, 364 (7th Cir.1997). Another concern is that labor arbitrators are generally only authorized under CBAs to resolve contractual, and not statutory, claims. Gilmer, 500 U.S. at 34, 111 S.Ct. at 1656. Accordingly, we have held that arbitration agreements contained within a CBA do not bar civil claims under Title VII. See Varner v. National Super Markets, Inc., 94 F.3d 1209, 1213 (8th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 946, 136 L.Ed.2d 835 (1997); Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1326 n. 3 (8th Cir.1994). In contrast, an arbitration agreement such as the one Patterson entered into represents the interests of the individual. See Gilmer, 500 U.S. at 35, 111 S.Ct. at 1657; Pryner, 109 F.3d at 363 (“[Wjorkers’ statutory rights ____are arbitrable if the worker consents to have them arbitrated.”). In addition, the arbitration agreement in the present case does not limit the arbitrator solely to interpretation of the contract. See Gilmer, 500 U.S. at 35, 111 S.Ct. at 1657. The CBA cases, therefore, “provide no basis for refusing to enforce [an individual consentual] agreement to arbitrate.” Id. Thus, we agree with those post-Gilmer decisions which have ruled that Title VII claims, like ADEA claims, are subject to individual consensual agreements to arbitrate. See Cole," }, { "docid": "6052423", "title": "", "text": "with the provisions of the agreement; both agreements make clear that the arbitrator does not have the authority to add to, detract from, or alter in any way any provision of the respective agreement. In examining the arbitrator’s authority under the collective bargaining agreement in Alexander, the Supreme Court discussed the limitations it had previously placed on arbitrators of grievances brought pursuant to collective bargaining agreements, 415 U.S. at 53, 94 S.Ct. at 1022, and explained what those limitations meant in this context: If an arbitral decision is based solely upon the arbitrator’s view of the requirements of enacted legislation, rather than on an interpretation of the collective-bargaining agreement, the arbitrator has exceeded the scope of the submission, and the award will not be enforced. Thus, the arbitrator has authority to resolve only questions of contractual rights, and this authority remains regardless of whether certain contractual rights are similar to, or duplicative of, the substantive rights secured by Title VII. 415 U.S. at 53-54, 94 S.Ct. at 1022 (internal quotation marks omitted). That analysis applies in this case, because the Agreement did not authorize the arbitrator to decide federal statutory claim issues. It is true that Brisentine, unlike the plaintiff in Alexander, did not first submit any contract-based claims to arbitration. However, as the Alexander Court noted, “the actual submission of [the] grievance to arbitration ... does not alter the situation.” 415 U.S. at 52, 94 S.Ct. at 1021; see also id. at 52, 94 S.Ct. at 1022 (“[Statutory and contractual rights] have legally independent origins and are equally available to the aggrieved party.”); Varner v. National Super Markets, Inc., 94 F.3d 1209, 1213 (8th Cir.1996) (“[T]he United States Supreme Court has held that the pursuit of a claim through grievance and binding arbitration under a [collective bargaining agreement] does not preclude a civil suit under Title VII, and we believe that the same reasoning applies to a plaintiff who has chosen not to participate in the grievance procedure.”) (citations omitted), cert. denied, — U.S. -, 117 S.Ct. 946, 136 L.Ed.2d 835 (1997). For all of those reasons, the first" }, { "docid": "7797530", "title": "", "text": "employee’s rights under Title VII.” 415 U.S. at 51, 94 S.Ct. at 1021. I think this proposition must be held to apply to rights under the ADEA and that there can be no prospective waiver thereof, contrary to the majority holding. The suggestion the majority makes to the effect that the Federal Arbitration Act requires the enforcement of the arbitration provision in this case, while it did not in Gardner-Denver, for the principal reason that it was not considered in Gardner-Denver, also, I think, does not bear scrutiny. With that as a starting point, the majority reasons that “the Court’s analysis was not governed by the ‘federal policy favoring arbitration’ requiring that ‘[courts] rigorously enforce agreements to arbitrate.’ ” While it is true that the Federal Arbitration Act was not explicitly mentioned in Alexander, it is doing a disservice to the Court, I think, to imply that it was unaware of a federal policy favoring arbitration. Indeed, Alexander referred to United Steelworkers of America v. Enterprise Wheel and Car Company, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), one of the famous Steelworkers Trilogy which provided explicitly that “a major factor in achieving industrial peace is the inclusion of a provision for arbitration of grievances in the collective bargaining agreement.” Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 1350-51, 4 L.Ed.2d 1409 (1960). So any public policy reason to enforce arbitration to the exclusion of the consideration of the claim by the federal courts was stronger in Alexander than it is here, being a part of the national labor policy. If that policy was not strong enough in Alexander to require the literal enforcement of an arbitration provision to the exclusion of a statutory right, certainly any policy deferring to an alternate forum for disputes resolution does not rise so high. To sum it up, the plaintiff, Gilmer, meets the jurisdictional prerequisites for filing a case under the ADEA. The ADEA does not foreclose his right to sue or divest the federal courts of jurisdiction. Since Alexander holds that a collective bargaining agreement" }, { "docid": "5591407", "title": "", "text": "to Austin on whether a CBA could waive an individual employee’s statutory cause of action. See Penny v. United Parcel Serv., 128 F.3d 408, 414 (6th Cir.1997) (finding that allowing judicial forum for individual statutory claim under CBA displays fidelity to Supreme Court precedent); Brisentine v. Stone & Webster Eng’g Corp., 117 F.3d 519, 526-27 (11th Cir.1997) (finding that “mandatory arbitration clause in a collective bargaining agreement does not bar litigation of a federal statutory claim” and disagreeing with Austin); Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1453-54 (10th Cir.1997) (adopting majority view and noting that only this circuit required arbitration of federal statutory claims when CBA contains an arbitration clause); Pryner v. Tractor Supply Co., 109 F.3d 354, 363 (7th Cir.1997) (rejecting Austin and adopting majority view); Varner v. Nat’l Super Markets, Inc., 94 F.3d 1209, 1213 (8th Cir.1996) (allowing pursuit of Title VII claim in judicial forum under CBA); Tran v. Tran, 54 F.3d 115, 117 (2d Cir.1995) (deciding that plaintiff need not have arbitrated before pursuing lawsuit). In point of fact, and consistent with the foregoing, none of our sister circuits, as of April 1998, had agreed with the position we took in Austin. The circuit split evidenced by these decisions concerned whether collective bargaining agreements containing general language required arbitration of individuals’ statutory claims, such as those arising under the ADEA and Title VII. The disagreement of the circuits on this issue resulted from varying interpretations of the Court’s decisions in Alexander v. Gardner-Denver Company, 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), and Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). This Court, in Austin, had deemed Gilmer to be the controlling authority, while the other circuits chose the alternate route, finding the Court’s decision in Alexander to control. In opposition to Earthgrains’ summary judgment motion, Ms. Hunter repeatedly relied upon the Supreme Court’s decision in Alexander (failing, however, to rely on the decisions of the six circuits that had followed Alexander). She further sought to align her case against Earthgrains with Alexander by discussing" }, { "docid": "22578556", "title": "", "text": "statutory claims cannot be the subject of required arbitration. We do not think Congress intended to return to the old law.”). Austin has not inspired many followers. Indeed, Judge Hall, the dissenting panel member in Austin, forcefully argued that nothing about Gilmer alters Gardner-Denver’s holding that a “labor union may not prospectively waive a member’s individual right to choose a judicial forum for a statutory claim.” Id. at 886. Within the last two months, moreover, the Eleventh Circuit explicitly rejected the “result and reasoning of the Fourth Circuit” in Austin, finding Judge Hall’s dissent more persuasive. See Brisentine v. Stone & Webster Engineering Corp., 117 F.3d 519, 526 (1997). Several other circuit courts side with the Eleventh Circuit. See Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1453 (10th Cir.), petition for cert. filed, 66 U.S.L.W. 3137 (U.S. Aug. 6, 1997) (No. 97-232) (adopting “the majority view ... that Alexander and its progeny remain good law and that statutory employment claims are independent of a collective bargaining agreement’s grievance and arbitration procedures”) (internal quotations omitted); Pryner v. Tractor Supply Co., 109 F.3d 354, 363 (7th Cir.), cert. denied, — U.S. -, 118 S.Ct. 294, 139 L.Ed.2d 227 (1997) (applying Alexander and holding that “the union cannot consent for the employee by signing a collective bargaining agreement that consigns the enforcement of statutory rights to the union-controlled grievance and arbitration machinery created by the agreement”); Varner v. National Super Markets, Inc., 94 F.3d 1209 (8th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 946, 136 L.Ed.2d 835 (1997); Tran v. Tran, 54 F.3d 115, 117-18 (2nd Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1417, 134 L.Ed.2d 542 (1996). These decisions display more fidelity to the Supreme Court’s holdings in Gardner-Denver and Gilmer than does Austin. As Judge Hall argued, although Gilmer permits an individual to waive his prerogative to pursue a statutory right in a judicial forum, that case does not' alter Gardner-Denver’s holding that a labor union cannot make such a waiver prospectively on an individual’s behalf. Though not previously called upon to decide the jurisdictional question now before" }, { "docid": "6132040", "title": "", "text": "is intended to supplement, not supplant, the remedies provided by Title VII. Thus, for example, the Committee believes that any agreement to submit disputed issues to arbitration, whether in the context of a collective bargaining agreement or in an employment contract, does not preclude the affected person from seeking relief under the enforcement provisions of Title VII. This view is consistent with the Supreme Court’s interpretation of Title VII in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). The Committee does not intend this section to be used to preclude rights and remedies that would otherwise be available. H.R.Rep. No. 102-40(1), 102d Cong., 1st Sess. 97, reprinted in 1991 U.S.C.C.AN. 549, 635. In our circuit, the Fourth Circuit’s conclusion concerning the effect of Gilmer on Gardner-Denver in a collective bargaining agreement ease has been expressly rejected. In Penny v. United Parcel Service, 128 F.3d 408 (6th Cir.1997), the CBA, as in Austin, included provisions referring to non-discrimination against the handicapped employees and, specifically, “employees of a qualified disability under the Americans with Disabilities Act.” In rejecting the defendant’s claim that the federal court could not decide plaintiffs claim in view of the CBA’s provision for submission of claims to the grievance procedure and binding arbitration, the court pointed out that Gilmer did not overrule Gardner-Denver, but had distinguished it for the reasons stated by the Supreme Court in Gil-mer. After noting that “Austin has not inspired many followers,” referring to contrary decisions in the Second, Seventh, Eighth, Tenth, and Eleventh Circuits, the Sixth Circuit noted with approval the dissenting opinion in Austin which argued that, “although Gilmer permits an individual to waive his prerogative to pursue a statutory right in a judicial forum, that case does not alter Gardner-Denver’s holding that a labor union cannot make such a waiver prospectively on an individual’s behalf.” Id. at 413. (emphasis in original.) The Sixth Circuit then reached the following conclusion which, in this Court’s view, clearly is applicable to the Title VII claims in the present ease: We conclude that an employee whose only obligation to" } ]

[ { "docid": "8672135", "title": "", "text": "Danser had a past history of sexual abuse and that he was likely to commit offenses after his release from incarceration. The district court, however, declined to depart upward on Danser’s sentence and ultimately sentenced him to 370 months imprisonment. The district court also imposed three consecutive, three-year terms of supervised release, one for each count of Danser’s conviction. Lastly, based upon the government’s calculations, the district court ordered Dan-ser to pay restitution to Karen Doe in the amount of $309,549.36. The bulk of the restitutionary award, $304,200, was comprised of the anticipated costs of Karen’s future therapy. Danser did not object to the legality of the government’s request for restitution (or to the amount of that restitution) for the future costs of Karen’s psychological treatment. Furthermore, Danser did not object to the terms of his supervised release. Danser filed the instant appeal contesting the propriety of the district court’s imposition of consecutive terms of supervision and those portions of the district court's restitution order which award the anticipated future costs of therapy to Karen Doe. II. DISCUSSION The parties to this appeal disagree over the standard of review to be applied in reviewing the lower court's imposition of Danser's sentence. The government argues that the sentence should be reviewed for plain error, while Danser argues that the judge's interpretation of the sentencing guidelines is subject to de novo review. Danser, however, failed to object to both the terms of his supervised release and the court's restitutionary order at his sentencing hearing. Such a failure constitutes a forfeiture and, therefore, the judge's sentence should be reviewed for plain error. See Fed.R.Crim.P. 52. A. Consecutive terms of supervised release The government and the defendant both state that the district court committed plain error in imposing consecutive terms of supervised release as a component of Danser's sentence. We agree. A term of supervised release begins on the day an individual is released from incarceration. 18 U.S.C. § 3624(e). The term of any supervised release \"runs concurrently with any Federal, State, or local term of probation or supervised release or parole for another" } ]

[ { "docid": "12752562", "title": "", "text": "BEAM, Circuit Judge. Zoran appeals the district court’s imposition of an eighteen-month term of supervised release, in addition to twenty-four months’ imprisonment, following the most recent revocation of his supervised release. Because the eighteen-month term of supervised release exceeded the statutory maximum under 18 U.S.C. § 3583(h), we remand to the district court with instructions that it reduce the term of supervised release to seventeen months. I. BACKGROUND On November 12, 2004, Zoran pled guilty in the United States District Court for the District of Minnesota to one count of possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Zoran then fled Minnesota and failed to appear at his sentencing hearing on February 23, 2005. After Zoran was apprehended, he pled guilty to failure to appear (FTA), in violation of 18 U.S.C. § 3146(a)(1). The district court sentenced Zoran to a total of thirty-seven months’ imprisonment — twenty-four months on the child pornography count and thirteen months on the FTA count, to be served consecutively — and imposed two concurrent three-year terms of supervised release. On June 27, 2008, Zoran began serving his term of supervised release, which the district court revoked on February 2, 2009. Following the revocation, the district court sentenced Zoran to nineteen months’ imprisonment — eighteen months on the child pornography count and one month on the FTA count, to be served consecutively. The court also ordered a total of thirty-five months’ supervised release — thirty-five months on the FTA count and eighteen months on the child pornography count, to be served concurrently. On June 12, 2010, Zoran began serving his second term of supervised release, which the district court revoked on September 30, 2011. Following the second revocation, the district court sentenced Zoran to twenty-four months’ imprisonment — six months on the child pornography count and eighteen months on the FTA count, to be served consecutively. The court also imposed an eighteen-month term of supervised release solely on the FTA count. Zoran appeals, arguing that (1) the eighteen-month term of supervised release exceeds the statutory maximum under 18 U.S.C. § 3583, and (2) the" }, { "docid": "22845801", "title": "", "text": "1795, 146 L.Ed.2d 727 (2000). This position finds support in 18 U.S.C. § 3583(a), which notes that supervised release is “a part of the sentence.” When read as such, a revocation sentence should be seen as part of the initial sentence, even when the same act triggers multiple revocations. See United States v. Soto-Olivas, 44 F.3d 788, 790 (9th Cir.1995). Coupled with the conclusion that a district court has statutory discretion under 18 U.S.C. § 3584(a) to impose consecutive sentences upon revocation of concurrent terms of supervised release, Double Jeopardy is not implicated here. See also United States v. Clark, 984 F.2d 319 (9th Cir.1993) (holding that a defendant who was on probation and supervised release for separate offenses could be re-sentenced consecutively for the same conduct that led to his probation/supervised release violation). D. Next, Dees asserts that the District Court violated his Fifth and Sixth Amendment rights under Apprendi, Blakely, and Booker by requiring him to serve three consecutive terms in prison after the revocation of his supervised release. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); United States v. Booker, 543 U.S. 220, 260, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We exercise plenary review over the District Court’s application of the Sentencing Guidelines and Fifth and Sixth Amendment claims at issue here. United States v. Williams, 235 F.3d 858, 861 (3d Cir.2000). Joseph Dees contends that his revocation sentence was unconstitutional under Apprendi, Blakely, and Booker because it exceeded the statutory maximum of 51 months under the mandatory Sentencing Guidelines which governed pre-Booker. Dees’ argument on this point is without merit. Dees was not sentenced beyond the statutory maximum. The statutory maximum for each term of supervised release can be imposed upon revocation. Dees received 24 months for each underlying offense. Dees inappropriately aggregates the three revocation sentences and then compares them to the initial 51-month concurrent sentence. Further, while this Court has not addressed the supervised release scheme post-Booker, other Courts of Appeal to" }, { "docid": "22863926", "title": "", "text": "A. We reject Johnson’s contention that § 3624(e) controls the imposition of terms of imprisonment upon revocation of supervised release. Its plain language lends no support for the notion that it governs anything other than “[sjupervision after release.” See 18 U.S.C. 3624(e). Instead, § 3584, which governs “[mjultiple sentences of imprisonment” and which is not limited by its language to terms of imprisonment imposed in the initial judgment of conviction, controls. See 18 U.S.C. § 3584. According to § 3584(a), “[i]f multiple terms of imprisonment are imposed on a defendant at the same time, ... the terms may run concurrently or consecutively.” 18 U.S.C. § 3584(a). United States v. Cotroneo is instructive. In Cotroneo, the defendant was serving concurrent terms of supervised release for credit card fraud and escape. See 89 F.3d at 513. The district court revoked the defendant’s supervised release and sentenced him to twenty-four months consecutive imprisonment on each conviction. See id. at 512. The defendant appealed and made the same argument Johnson makes here. See id. at 512-13. The Eighth Circuit concluded that “[bjecause § 3584(a) is not limited, in terms, to the imposition of sentence at the conclusion of trial (as distinguished from the imposition of sentence after revocation of a defen dant’s supervised release) ... the District Court retains discretion to impose either concurrent or consecutive sentences after revocation of a defendant’s supervised release.” Id. at 513. In contrast, the court continued, § 3624(e) “governs the trial court’s initial imposition of terms of supervised release, not its subsequent sentencing discretion upon revocation of that supervised release.” Id. Accordingly, the Eighth Circuit held that § 3624(e) does not preclude consecutive terms of imprisonment upon revocation of supervised release. See id. Instead, the court concluded, “ § 3584(a) allow[s] the District Court to impose consecutive rather than concurrent sentences upon revocation of ... concurrent terms of supervised release.” Id. We agree. Accordingly, we hold that the district court had the authority to impose consecutive sentences upon Johnson when it revoked his supervised release. B. Section 3584(a) gives district courts discretion in choosing concurrent or consecutive terms" }, { "docid": "22845793", "title": "", "text": "Fifth and Sixth Amendment rights under Apprendi, Blakely, and Booker by requiring Dees to serve three consecutive terms in prison; and 5) Whether the District Court violated the Fifth Amendment’s Due Process Clause when it found a violation of Dees’ supervised release by a preponderance of the evidence standard rather than a reasonable doubt standard and imposed three consecutive terms in prison. A. The first issue is whether the District Court had statutory discretion under 18 U.S.C. § 3584(a) to impose consecutive sentences upon revocation of concurrent terms of supervised release based upon the same violation conduct. We exercise plenary review of the legal issue of statutory construction. See Lieberman v. Cambridge Partners, L.L.C., 432 F.3d 482, 486 (3d Cir.2005). Section 3584(a) states in relevant part that: If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively, except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt. 18 U.S.C. § 3584(a). Dees contends that § 3584(a) has no application in supervised release revocation proceedings under § 3583(e)(3). He argues that § 3583(e)(3) removes the discretion of a District Court to impose consecutive sentences of imprisonment for violations of supervised release. Section 3583(e)(3) states that, when certain conditions are met, a district court can “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release.” See 18 U.S.C. § 3583(e)(3). Section 3624(e) mandates that multiple terms of supervised release run concurrently. See 18 U.S.C. § 3624(e) (stating that “even in the case of a consecutive term of imprisonment ... any term of supervised release imposed is to run concurrently with any other term of supervised release imposed”). Dees combines these statutes and concludes that, because supervised release terms are always" }, { "docid": "12998685", "title": "", "text": "U.S.C. § 3583(b) provides that the maximum period of supervised release for a misdemeanor is one year. This maximum applies to both the substantive crime and the conspiracy. 18 U.S.C. § 371. Under 18 U.S.C. § 3624(e), a term of supervised release “runs concurrently with any [other] term ... [of] supervised release ... for another offense to which the person is subject or becomes subject during the term of supervised release.” See also United States v. Hernandez-Guevara, 162 F.3d 863, 877 (5th Cir.1998) (“Even when federal law requires consecutive terms of imprisonment, the supervised release term ‘is to run concurrently with any other term of supervised release imposed.’ ” (quoting U.S. Sentencing Guidelines Manual § 5G1.2 commentary (1997))). We thus vacate Turner’s term of supervised release and remand for the imposition of a new term of supervised release not to exceed one year. Otherwise, the judgments entered by the district court are affirmed. . The indictment also charged Ziskind and Turner with possession of goods stolen from an interstate shipment in violation of 18 U.S.C. § 659 (Count Two). That count was dismissed as a lesser included offense to Count One. In addition, the indictment charged Russell Jones with Counts One through Three and Brendan Bottino with Count Two. Both pled guilty. Jones was sentenced to twelve months' probation and ordered to pay $5000 in restitution, and Bottino was sentenced to twelve months' imprisonment. Neither has appealed his sentence. . At the sentencing hearing, the court ordered Turner to serve a five-year term of supervised release. The court did not at that time specify whether the five-year sentence was attributable to an unrelated felon-in-possession charge, on which Turner was also sentenced that day, the theft charges, or both. However, the judgment in this case specifies a thirty-six-month period of supervised release, and the judgment in the firearms case indicates a sixty-month term of supervised release. . Ziskind also relies on Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). ." }, { "docid": "1292206", "title": "", "text": "Connecticut before Judge T.F. Gilroy Daly. Howard was convicted on the first three counts of the indictment. Judge Daly sentenced Howard to two concurrent terms of 262 months imprisonment on counts one and two and to a consecutive term of 60 months on count three, for a total of 322 months. The court also ordered a five year supervised release term, and imposed a special assessment of $150. Howard appeals his sentence only, contending that: (1) he was improperly sentenced twice for the same conduct, (2) imposition of his drug and firearms sentences consecutively, rather than concurrently, violated his rights under the Double Jeopardy Clause of the Fifth Amendment of the Constitution, and (3) the firearms statute improperly was applied to him. Koontz was convicted on the first two counts of the indictment and acquitted on the third. Judge Daly sentenced Koontz to concurrent terms of 121 months on the two counts. The court also ordered a supervised release term of five years, and imposed a special assessment of $100. Koontz also challenges his sentence only, contending that: (1) the district court improperly applied the narcotics provisions of the Federal Sentencing Guidelines (the “Guidelines”) in determining his sentence, and (2) the district court improperly applied the offense level provisions of the Guidelines in determining his sentence. Santana, who had given a statement that was inadmissible against his co-conspirators, was tried separately. The jury found him guilty on all four counts of the indictment. Judge Daly sentenced Santana to three concurrent terms of 290 months on counts one, two and four followed by a consecutive sentence of 60 months on count three, for a total of 350 months. The court also ordered a term of five years supervised release, and imposed a special assessment of $200. Santana appeals from the judgment of conviction and his sentence, contending that: (1) the district court improperly denied him a hearing on his pre-trial motion to suppress evidence, (2) the district court incorrectly applied the armed career criminal statute, 18 U.S.C. § 924(e)(1), and (3) the guideline applicable to § 924(e)(1), U.S.S.G. § 4B1.4, does" }, { "docid": "22845794", "title": "", "text": "run consecutively for an attempt and for another offense that was the sole objective of the attempt. 18 U.S.C. § 3584(a). Dees contends that § 3584(a) has no application in supervised release revocation proceedings under § 3583(e)(3). He argues that § 3583(e)(3) removes the discretion of a District Court to impose consecutive sentences of imprisonment for violations of supervised release. Section 3583(e)(3) states that, when certain conditions are met, a district court can “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release.” See 18 U.S.C. § 3583(e)(3). Section 3624(e) mandates that multiple terms of supervised release run concurrently. See 18 U.S.C. § 3624(e) (stating that “even in the case of a consecutive term of imprisonment ... any term of supervised release imposed is to run concurrently with any other term of supervised release imposed”). Dees combines these statutes and concludes that, because supervised release terms are always concurrent, the sentences imposed upon revocation of such release cannot be consecutive. Under Dees’ reading of these statutes, the statutory maximum is 24 months, but this term cannot be multiplied out to 72 months even though there were three separate underlying crimes that formed the basis of Dees’ supervised release sentence. Contrary to Dees’ assertions, 18 U.S.C. § 3584(a) controls and permits a district court to impose consecutive terms of im prisonment upon revocation of supervised release — even when the sentences for the underlying crimes ran concurrently. No fewer than six other circuits have agreed with the proposition that § 3584(a) applies to not only the imposition of one’s initial sentence but also to a sentence imposed upon revocation of supervised release. See United States v. Deutsch, 403 F.3d 915, 917-18 (7th Cir.2005) (per curiam); United States v. Gonzalez, 250 F.3d 923, 926-29 (5th Cir.2001); United States v. Jackson, 176 F.3d 1175, 1176-79 (9th Cir.1999) (per curiam); United States v. Johnson, 138 F.3d 115, 118-19 (4th Cir.1998); United States v. Quinones, 136 F.3d 1293," }, { "docid": "22881778", "title": "", "text": "because Eskridge had already served 14 months of reimprisonment. For remember that the maximum reimprisonment, regardless of the number of revocations of supervised release, is 24 months. The reason it matters whether the 26 months of supervised release represented one term or two concurrent terms is that consecutive terms of imprisonment may be imposed upon revocation of concurrent terms of supervised release. United States v. Deutsch, 403 F.3d 915, 917 (7th Cir.2005) (per curiam). So if in 2002 the district judge actually imposed two terms of supervised release, he had two terms that he could revoke in 2004 and 2005 and he could then have ordered Eskridge to serve consecutive 10-month prison terms without violating the 2-year maximum. (Of course two consecutive 10-month terms don’t add up to 22 months, the sentence that the judge imposed, but only to 20 months. We do not know what the judge was thinking; but as will become apparent, this mystery need not be unraveled.) In United States v. Gresham, 325 F.3d 1262, 1263 and n. 1 (11th Cir.2003), the defendant had pleaded guilty to five counts of bank robbery and had been sentenced to 87 months in prison followed by 60 months of supervised release. The court of appeals interpreted the sentence of supervised release as having been imposed on each count, to run concurrently. It wouldn’t have made any sense for the judge to have imposed supervised release on only one count. That is equally true in this case, especially when the judge had imposed concurrent terms of supervised release on each of the two counts of conviction, both in his original sentencing and in his second revocation of supervised release. (The third time he merely ordered Eskridge reimprisoned; he did not impose a further term of supervised release.) If the failure of the judgment order to state that the judge was imposing two (concurrent) terms of supervised release in the first revocation was merely a clerical error—that is, if the court announced two new terms but the clerk who typed the 2002 judgment included just one—then Rule 36 will allow correction" }, { "docid": "12998684", "title": "", "text": "range set forth in the Sentencing Guidelines. It complied with the sentencing protocol. Further, Turner was not prejudiced: his eighteen-month sentence runs concurrently with a 235-month sentence. See United States v. Dominguez Benitez, 542 U.S. 74, 81-82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (“[R]elief for error is tied in some way to prejudicial effect ... [and requires a] showing of ‘a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different.’ ” (third alteration in original) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (opinion of Blackmun, J.))). D. Turner’s Term of Supervised Release Turner also argues that the district court erred in sentencing him to thirty-six months of supervised release. He argues that because the maximum term of supervised release for Count One was one year, the maximum term under Count Three also was one year, and that his term of supervised release thus was unauthorized. The government concedes that the thirty-six-month supervised release term was error. 18 U.S.C. § 3583(b) provides that the maximum period of supervised release for a misdemeanor is one year. This maximum applies to both the substantive crime and the conspiracy. 18 U.S.C. § 371. Under 18 U.S.C. § 3624(e), a term of supervised release “runs concurrently with any [other] term ... [of] supervised release ... for another offense to which the person is subject or becomes subject during the term of supervised release.” See also United States v. Hernandez-Guevara, 162 F.3d 863, 877 (5th Cir.1998) (“Even when federal law requires consecutive terms of imprisonment, the supervised release term ‘is to run concurrently with any other term of supervised release imposed.’ ” (quoting U.S. Sentencing Guidelines Manual § 5G1.2 commentary (1997))). We thus vacate Turner’s term of supervised release and remand for the imposition of a new term of supervised release not to exceed one year. Otherwise, the judgments entered by the district court are affirmed. . The indictment also charged Ziskind and Turner with possession of goods stolen from an interstate shipment in violation of 18 U.S.C." }, { "docid": "23595433", "title": "", "text": "district court further held that Ide had violated the conditions of his supervised release. Based on Ide’s violation of these conditions, the district court revoked Ide’s supervised release term and sentenced Ide' to a six-month prison term followed by a seven-month period of supervised release. Ide timely filed a notice of appeal. II. The sole question presented in this appeal is whether Ide’s term of supervised release was tolled under 18 U.S.C. § 3624(e) during his pretrial detention for an offense for which he was later convicted. Ide does not challenge the district court’s holding that he violated the terms of his supervised release. The parties agree that if Ide’s term of supervised release was not tolled by the statute during his pretrial detention on the state charge, the government’s revocation petition was untimely. If, however, the statute tolled Ide’s term of supervised release during this period, the government’s petition to revoke was timely filed and was properly before the district court. This issue of statutory interpretation presents a question of law that we review de novo. See United States v. Segers, 271 F.3d 181, 183 (4th Cir.2001). The period during which a term of supervised release remains in effect is addressed in 18 U.S.C. § 3624(e), which states in relevant part: The term of supervised release commences on the day the person is released from imprisonment and runs concurrently with any Federal, State, or local term of probation or supervised release or parole for another offense to which the person is subject or becomes subject during the term of supervised release. A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, Sijate, or local crime unless the imprisonment is for a period of less than 30 consecutive days. (Emphasis added). Thus, we must determine whether a person held in pretrial detention is “imprisoned” “in connection with a conviction,” within the meaning of § 3624(e). When interpreting a statute, we first consider the plain meaning of the statutory language. United States v. Abdelshafi, 592 F.3d" }, { "docid": "22845795", "title": "", "text": "concurrent, the sentences imposed upon revocation of such release cannot be consecutive. Under Dees’ reading of these statutes, the statutory maximum is 24 months, but this term cannot be multiplied out to 72 months even though there were three separate underlying crimes that formed the basis of Dees’ supervised release sentence. Contrary to Dees’ assertions, 18 U.S.C. § 3584(a) controls and permits a district court to impose consecutive terms of im prisonment upon revocation of supervised release — even when the sentences for the underlying crimes ran concurrently. No fewer than six other circuits have agreed with the proposition that § 3584(a) applies to not only the imposition of one’s initial sentence but also to a sentence imposed upon revocation of supervised release. See United States v. Deutsch, 403 F.3d 915, 917-18 (7th Cir.2005) (per curiam); United States v. Gonzalez, 250 F.3d 923, 926-29 (5th Cir.2001); United States v. Jackson, 176 F.3d 1175, 1176-79 (9th Cir.1999) (per curiam); United States v. Johnson, 138 F.3d 115, 118-19 (4th Cir.1998); United States v. Quinones, 136 F.3d 1293, 1294-95 (11th Cir.1998) (per curiam); United States v. Cotroneo, 89 F.3d 510, 512-13 (8th Cir.1996). Nothing in § 3584(a) states or implies that the statute does not extend to revocation proceedings. A district court has full authority under § 3584(a) to sentence a defendant consecutively for violations of supervised release. The Seventh Circuit rejected almost the exact argument offered by Dees in Deutsch. In Deutsch, the defendant similarly argued that § 3583(e) and § 3624(e) should be read together to preclude the imposition of consecutive terms of imprisonment on revocation. 403 F.3d at 917. Rejecting the argument that § 3624(e) must be applied alongside § 3583(e)(3), the Court stated, “[n]o plausible reading of [§ 3624(e) ] supports [defendant’s] argument that it forbids a district court from imposing consecutive terms of imprisonment upon revocation of supervised release.” Id. Section 3583(e)(3) similarly provides no support, because the language of that statutory section focuses only on total punishment. See id. at 917-18 (stating that the restrictions in § 3583(e)(3) “limit only the length of each term, not the" }, { "docid": "23523932", "title": "", "text": "a leather jacket, a Class B violation of supervised-release conditions. See U.S.S.G. § 7B1.1(a)(2). The court revoked the terms and sentenced Quinones to 18 months’ imprisonment for each violation, to be served consecutively. Quinones appeals, contending that the district court lacked the discretion to sentence him to consecutive terms of imprisonment following the revocation of his concurrent terms of supervised release. We review the district court’s interpretation of sentencing provisions de novo. United States v. Granderson, 969 F.2d 980, 982 (11th Cir.1992). Discussion This question is one of first impression in this circuit, but not elsewhere. In United States v. Cotroneo, 89 F.3d 510 (8th Cir.), cert. denied,-U.S.-, 117 S.Ct. 533, 136 L.Ed.2d 419 (1996), the Eighth Circuit resolved this precise issue against the defendant. The court reasoned that 18 U.S.C. § 3584(a), which governs imposition of multiple terms of imprisonment, permits a court to order multiple terms to run consecutively. Section 3584(a) does not exclude from its operation the imposition of imprisonment terms following the revocation of terms of supervised release. The court found, moreover, no statutory or Sentencing Guidelines provision that constricted the discretion that § 3584(a) confers upon the district court in these circumstances. The Eighth Circuit accordingly concluded that consecutive sentences for violation of conditions of two terms of supervised release are permissible. Quinones argues to the contrary that 18 U.S.C. § 3583(e), which governs modification and revocation of terms of supervised release, narrows the district court’s discretion at sentencing following a supervised-release violation. That section provides a laundry list of how a court may modify the conditions or length of a term of supervised release; Quinones posits that the list does not include the power to alter the concurrent or consecutive nature of the term of supervised release. Quinones therefore concludes that the district court could not change the original concurrent nature of his terms of supervised release. Alternatively, Quinones asserts that by analogy to U.S.S.G. § 5G1.2(d), only concurrent sentences could be imposed in his circumstances. That section provides that sentences imposed on multiple counts of conviction must run concurrently unless a consecutive sentence" }, { "docid": "22863932", "title": "", "text": "of his fine despite his failure, in an earlier appeal, to challenge the fine based on his inability to pay. See 321 F.2d 339, 341-42 (4th Cir.1963). Taylor is clearly distinguishable. In that case, the defendant did not challenge the imposition of his fine. See id. Instead, he challenged the propriety of the revocation based upon his failure to pay a fine he allegedly was unable to pay. See id. (noting that the defendant’s challenge was based \"upon his impecunious state in 1963 when defaulting, not in 1961 when probationed\"). . The government contends that the mandate rule precludes these challenges. Unless there are exceptional circumstances, the mandate rule precludes relitigation of issues expressly or impliedly decided on appeal or waived because not presented in the district court. United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). However, because we conclude that w'e are without jurisdiction, we do not address this contention. .Section 3624(e) provides that ”[t]he term of supervised release ... runs concurrently with any Federal, State, or local term of probation or supervised release or parole for another offense to which the person is subject or becomes subject during the term of supervised release.” 18 U.S.C. § 3624(e). . The sentencing court’s discretion is necessarily proscribed in part, however, in order to implement \"the statutory mandate to the Sentencing Commission to promulgate guidelines to be used by courts in determining whether- to sentence concurrently or consecutively.” United States v. Rogers, 897 F.2d 134, 137 (4th Cir.1990). USSG § 5G1‘.3 directs that some sentences run consecutively. We have reconciled this guideline with § 3584(a) by applying a departure analysis. See Rogers, 897 F.2d at 137. For example, if the district court follows the appropriate procedures for departing and properly justifies its departure, the district court may exercise its discretion and depart to impose a concurrent sentence when a consecutive sentence is called for by the guidelines. See id. The advisory Chapter 7 policy statements of the guidelines apply to the revocation of supervised release. They also specify circumstances under which sentences imposéd' upon revocation ' should run" }, { "docid": "22443521", "title": "", "text": "under § 3584(a) or that it failed to consider the relevant factors set forth in § 3553(a). Cotroneo suggests that, notwithstanding the seemingly discretionary language of § 3584(a), the sentencing-judge is required by a different statutory provision, 18 U.S.C. § 3624(e) (1994), to run concurrently terms of imprisonment imposed after revocation of supervised release. We do not, however, believe that § 3624(e) bears the weight that Cotroneo would place upon it. Section 3624(e) does not control the imposition of sentence after revocation of supervised release; rather § 3624(e) provides that “[t]he term of supervised release ... runs concurrently with any Federal, State, or local term of probation or supervised release.” Section 3624(e) thus by its terms governs the trial court’s initial imposition of terms of supervised release, not its subsequent sentencing discretion upon revocation of that supervised release. Cf. United States v. Gullickson, 982 F.2d 1231, 1236 (8th Cir.1993) (holding that § 3624(e) requires court to impose consecutive, rather than concurrent, terms of supervised release to follow terms of imprisonment on multiple convictions). We conclude that § 3584(a) allowed the District Court to impose consecutive rather than concurrent sentences upon revocation of Cotroneo’s concurrent terms of supervised, release. III. Cotroneo argues that the District Court abused its discretion by denying his motion for a continuance. We do not agree. During the revocation hearing, Cotroneo’s counsel represented to the court that “[w]e didn’t get all the evidence until, like, yesterday,” Hearing Transcript at 4, and that “we are not ready because [Cotroneo] is indicating to me there is evidence and individuals and witnesses he would like to have, and I believe would be properly available to him,” id. at 5. District courts are afforded broad discretion when ruling on requests for continuances. Morris v. Sloppy, 461 U.S. 1, 11, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983). Continuances generally are not favored and should be granted only when the party re questing one has shown a compelling reason. Id. We will reverse a district court’s decision to deny a motion for a continuance only if the court abused its discretion and" }, { "docid": "12998683", "title": "", "text": "twenty-four-month sentence. Cf. United States v. Angiulo, 897 F.2d 1169, 1216 (1st Cir.1990) (“[W]e do not think that defendants can properly challenge on appeal a proposal they themselves offered to the trial court.”). Even giving Turner the benefit of review, however, there was neither error nor plain error. “By statute, Congress empowered district courts to utilize either concurrent or consecutive sentences.” United States v. Quinones, 26 F.3d 213, 216 (1st Cir.1994); see also 18 U.S.C. § 3584(a) (providing that “[i]f multiple terms of imprisonment are imposed on a defendant at the same time ... the terms may run concurrently or consecutively”). In determining whether to impose consecutive or concurrent sentences, courts are required to consider specific factors enumerated in 18 U.S.C. § 3553(a). 18 U.S.C. § 3584(b). These factors include “the nature and circumstances of the offense!,] the history and characteristics of the defendant!,] the need for [a consecutive] sentence!,] ... [and] the kinds of sentences available.” Id. § 3553(a). In imposing Turner’s sentence the court commented on Turner’s “terrible criminal record” and considered the range set forth in the Sentencing Guidelines. It complied with the sentencing protocol. Further, Turner was not prejudiced: his eighteen-month sentence runs concurrently with a 235-month sentence. See United States v. Dominguez Benitez, 542 U.S. 74, 81-82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (“[R]elief for error is tied in some way to prejudicial effect ... [and requires a] showing of ‘a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different.’ ” (third alteration in original) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (opinion of Blackmun, J.))). D. Turner’s Term of Supervised Release Turner also argues that the district court erred in sentencing him to thirty-six months of supervised release. He argues that because the maximum term of supervised release for Count One was one year, the maximum term under Count Three also was one year, and that his term of supervised release thus was unauthorized. The government concedes that the thirty-six-month supervised release term was error. 18" }, { "docid": "22863925", "title": "", "text": "the initial judgements of conviction. III. Johnson argues that 18 U.S.C. § 3624(e) and Chapter 7 of the Sentencing Guidelines do not authorize consecutive sentences for “simultaneous violations of supervised release,” and that, even if they do authorize consecutive sentences, the district court abused its discretion when it failed to explain why it imposed them. In arguing that § 3624(e) precludes consecutive sentences, Johnson makes essentially the same argument rejected by the Eighth Circuit in United States v. Cotroneo, 89 F.3d 510, 512-13 (8th Cir.), cert. denied, — U.S. -, 117 S.Ct. 533, 136 L.Ed.2d 419 (1996), an argument we also reject. According to that argument, because the plain language of § 3624(e) requires terms of supervised release to run concurrently, terms of imprisonment following revocation also must run concurrently. See Cotroneo, 89 F.3d at 513. We also reject Johnson’s contention that the district court abused it discretion by not demonstrating on the record that it had considered the relevant factors under 18 U.S.C. § 3553(a) when sentencing Johnson. We address Johnson’s arguments in turn. A. We reject Johnson’s contention that § 3624(e) controls the imposition of terms of imprisonment upon revocation of supervised release. Its plain language lends no support for the notion that it governs anything other than “[sjupervision after release.” See 18 U.S.C. 3624(e). Instead, § 3584, which governs “[mjultiple sentences of imprisonment” and which is not limited by its language to terms of imprisonment imposed in the initial judgment of conviction, controls. See 18 U.S.C. § 3584. According to § 3584(a), “[i]f multiple terms of imprisonment are imposed on a defendant at the same time, ... the terms may run concurrently or consecutively.” 18 U.S.C. § 3584(a). United States v. Cotroneo is instructive. In Cotroneo, the defendant was serving concurrent terms of supervised release for credit card fraud and escape. See 89 F.3d at 513. The district court revoked the defendant’s supervised release and sentenced him to twenty-four months consecutive imprisonment on each conviction. See id. at 512. The defendant appealed and made the same argument Johnson makes here. See id. at 512-13. The Eighth Circuit" }, { "docid": "15333541", "title": "", "text": "of Defendant Campbell’s Sentence The government admits that Campbell’s four-year term of supervised release ex ceeds the maximum three-year term of supervised release authorized by 21 U.S.C. § 841(b)(1)(D), as set forth in U.S.S.G. § 5D1.2(a)(2), and agrees that this court must remand for the purpose of setting a new term of supervised release. Accordingly, this matter will be remanded for the limited purpose of imposing a period of supervised release that does not exceed the three-year maximum. Whether the District Court’s Imposition of Two Five-Year Consecutive Sentences was Appropriate under United States Sentencing Guidelines This court’s standard of review for the district court’s application of the United States Sentencing Guidelines is de novo. United States v. Moses, 106 F.3d 1273, 1277 (6th Cir.1997). The maximum sentence under 21 U.S.C. § 841(b)(1)(D) for each drug conviction is 60 months. Campbell and Green were each convicted on two drug counts. The recommended sentences for both Campbell and Green pursuant to the Sentencing Guidelines’ combined offense level calculations were greater than 120 months. As set forth in the U.S. Sentencing Guidelines, § 5G1.2: If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. In all other respects, sentences on all counts shall run concurrently, except to the extent otherwise required by law. U.S.S.G. § 5G1.2(d). Appellants’ argument that U.S.S.G. § 5Gl.l(a) limits their sentences to 12 months is misplaced, because that provision addresses single counts of conviction and includes language stating “[w]here the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence.” As stated above, appellants were each convicted under two counts of the indictment, and each conviction carried a maximum sentence of 60 months pursuant to the applicable statutory penalty provision. For the foregoing reasons, it is this court’s determination that under U.S.S.G. § 5G1.2(d), consecutive 60-month" }, { "docid": "22978477", "title": "", "text": "comment could have had a substantial and injurious effect on the verdict in Hernandez’s case. There was overwhelming evidence, as we noted above, that Hernandez was in the Lincoln at the time of his arrest. D. Consecutive Terms of Supervised Release Finally, Hernandez argues that the district court erred as a matter of law in requiring that the three-year supervised release term for his 1997 conviction run consecutive to the three-year term of supervised release on his 1996 conviction, United States v. Hernandez, No. DR-96-CR-178 (W.D.Tex. Feb. 11, 1997). Thus, Hernandez claims, he is now wrongly subject to six, rather than three, years of post-incarceration supervision. 1. Standard of Review We review the district court’s application of the Sentencing Guidelines de novo, see United States v. Sylvester, 143 F.3d 923, 931 (5th Cir.1998), and its factual findings for clear’ error, see United States v. Upton, 91 F.3d 677, 687 (5th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1818, 137 L.Ed.2d 1027 (1997). A sentence will be upheld on appeal unless it was imposed in violation of law, imposed as a result of an incorrect application of the sentencing guidelines, or outside the range of the applicable sentencing guideline and is unreasonable. See United States v. Wyjack, 141 F.3d 181, 183 (5th Cir.1998) (citing United States v. Garcia, 962 F.2d 479, 480-81 (5th Cir.1992)). 2. Analysis Federal law mandates that once a criminal defendant is released from prison, his supervised release term must run concurrently to any other supervision to which he is subject: The term of supervised release commences on the day the person is released from imprisonment and runs concurrently with any Federal, State, or local term of probation or supervised release or parole for another offense to which the person is subject or becomes subject during the term of supervised release. 18 U.S.C. § 3624(e). Under a plain reading of the statute, Hernandez’s supervised release term for the 1997 conviction must run concurrently to any supervised released term for another offense, including the 1996 alien smuggling offense. Cf. United States v. Gonzales, 520 U.S. 1, 5, 9-10," }, { "docid": "22443520", "title": "", "text": "a class C or D felony.” Therefore, the District Court acted properly (and Cotro-neo does not contend otherwise) in sentencing Cotroneo to two years of imprisonment for the credit card fraud conviction and two years of imprisonment for the escape conviction. The only issue is whether the District Court erred in running the sentences consecutively rather than concurrently. We conclude that the District Court acted within its discretion in sentencing Cotroneo to consecutive terms of imprisonment. Section 3584(a) provides: “If multiple terms of imprisonment are imposed on a defendant at the same time, ... the terms may run concurrently or consecutively.... ” Because § 3584(a) is not limited, in terms, to the imposition of sentence at the conclusion of trial (as distinguished from the imposition of sentence after revocation of a defendant’s supervised release), we conclude that the District Court retains discretion to impose either concurrent or consecutive sentences after revocation of a defendant’s supervised release. We see nothing in the record to indicate that the District Court abused its discretion in imposing consecutive sentences under § 3584(a) or that it failed to consider the relevant factors set forth in § 3553(a). Cotroneo suggests that, notwithstanding the seemingly discretionary language of § 3584(a), the sentencing-judge is required by a different statutory provision, 18 U.S.C. § 3624(e) (1994), to run concurrently terms of imprisonment imposed after revocation of supervised release. We do not, however, believe that § 3624(e) bears the weight that Cotroneo would place upon it. Section 3624(e) does not control the imposition of sentence after revocation of supervised release; rather § 3624(e) provides that “[t]he term of supervised release ... runs concurrently with any Federal, State, or local term of probation or supervised release.” Section 3624(e) thus by its terms governs the trial court’s initial imposition of terms of supervised release, not its subsequent sentencing discretion upon revocation of that supervised release. Cf. United States v. Gullickson, 982 F.2d 1231, 1236 (8th Cir.1993) (holding that § 3624(e) requires court to impose consecutive, rather than concurrent, terms of supervised release to follow terms of imprisonment on multiple convictions). We conclude" }, { "docid": "12752563", "title": "", "text": "release. On June 27, 2008, Zoran began serving his term of supervised release, which the district court revoked on February 2, 2009. Following the revocation, the district court sentenced Zoran to nineteen months’ imprisonment — eighteen months on the child pornography count and one month on the FTA count, to be served consecutively. The court also ordered a total of thirty-five months’ supervised release — thirty-five months on the FTA count and eighteen months on the child pornography count, to be served concurrently. On June 12, 2010, Zoran began serving his second term of supervised release, which the district court revoked on September 30, 2011. Following the second revocation, the district court sentenced Zoran to twenty-four months’ imprisonment — six months on the child pornography count and eighteen months on the FTA count, to be served consecutively. The court also imposed an eighteen-month term of supervised release solely on the FTA count. Zoran appeals, arguing that (1) the eighteen-month term of supervised release exceeds the statutory maximum under 18 U.S.C. § 3583, and (2) the district court abused its discretion when it imposed the maximum term of supervised release in addition to a term of imprisonment. II. DISCUSSION A. Maximum Term of Supervised Release Zoran argues that, under 18 U.S.C. § 3583, the district court was barred from imposing any term of supervised release or, in the alternative, that the eighteen-month term of supervised release imposed on the FTA count exceeds the statutory maximum. We review de novo the legality of a revocation sentence. United States v. Lewis, 519 F.3d 822, 824 (8th Cir.2008). Before addressing Zoran’s specific challenges, it is helpful to review the framework of 18 U.S.C. § 3583, which governs the imposition of original terms of supervised release, revocation of supervised release, and postrevocation sentencing. Under § 3583(b)(2), district courts may impose an initial term of supervised release of “not more than three years” if the underlying conviction is a Class D felony. If a district court revokes supervised release, it may impose a term of imprisonment “on any such revocation” not to exceed “2 years ..." } ]

[ { "docid": "22627910", "title": "", "text": "involved trafficking. . On this appeal, Amezcua no longer argues— as he did in the district court — that his 1981 convictions do not constitute \"crimes of violence” within the meaning of U.S.S.G. § 2L1.2(b)(l)(A)(ii). . In 1990, Congress expanded the definition of \"aggravated felony” to include \"crime[s] of violence ... for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least 5 years.” Immigration Act of 1990, Pub.L. No. 101— 649, § 501(a)(3), 104 Stat. 4978, 5048 (1990). Amezcua's 1981 convictions did not qualify under this definition because he was sentenced to four years. Moreover, the amendment applied only prospectively. Id. § 501(b). In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, which further extended the definition of “aggravated felony” to include crimes of violence \"for which the term of imprisonment [is] at least one year.” Pub.L. No. 104-208, Div. C, §§ 321(a)(3), 322(a)(2)(A), 110 Stat. 3009-546, 3009-627 (1996). The 1996 amendment applied “regardless of whether the conviction was entered before, on, or after the date of enactment.” Id. § 321(b). It was at this point that Amezcua's convictions first qualified as \"aggravated felonies” under Title 8. 8 U.S.C. § 1101(a)(43). . We note that the Supreme Court has vacated in light of Gall and remanded for re-sentencing a number of illegal reentry cases where the defendants were given Guideline sentences that included violent crime enhancements. See Rodriguez-Rodriguez v. United States, - U.S. -, 128 S.Ct. 876, 169 L.Ed.2d 717 (2008) (vacating affirmance of a 57-month Guidelines sentence for violating 8 U.S.C. § 1326 and remanding for further consideration in light of Gall), affd on remand sub nom. United States v. Rodriguez-Rodriguez, 530 F.3d 381 (5th Cir.2008); Jaimes-Aguirre v. United States, — U.S. —, 128 S.Ct. 2934, 171 L.Ed.2d 862 (2008) (vacating affirmance of an enhanced Guidelines sentence for violating 8 U.S.C. § 1326 and remanding for further consideration in light of Gall); Salazar-Garcia v. United States, — U.S. —, 128 S.Ct. 2934, 171 L.Ed.2d 862 (2008) (vacating affirmance of a 70-month Guidelines sentence for violating 8 U.S.C. § 1326" } ]

[ { "docid": "22468316", "title": "", "text": "462 F.3d 1090. In Coviavr-Sandoval, the defendant pled guilty to a charge of illegal re-entry and admitted that he was deported in 1997. See id. at 1092. At sentencing, the district court, consistent with Almendarez-Torres, found that the defendant had been convicted of an aggravated felony in 2002. See id. at 1097. Because the defendant’s previous removal in 1997 was prior to his 2002 aggravated felony conviction, he did not qualify for the twenty-year statutory-maximum sentence in § 1326(b)(2). However, the district court, relying on the PSR, found that the defendant had been again deported in 2004. See id. The district court thus applied the twenty-year statutory-maximum sentence because the defendant was deported subsequent to his 2002 aggravated felony conviction. Id. We held that it was error for the district court to rely on the 2004 removal to enhance the defendant’s statutory-maximum sentence. Id. Citing Apprendi, we explained that unlike the fact of a prior conviction at issue in Almendarez-Torres, the fact of an alien’s prior removal or departure is plainly one of the elements of the crime for which Covian was convicted. Accordingly, it must be proved beyond a reasonable doubt to a jury or admitted by the defendant. Id. at 1098 (citations omitted). Because “[t]he fact of a prior conviction is the only fact that both increases a penalty beyond the statutory maximum and can be found by a sentencing court,” we concluded that the district court erred by “[finding] the existence of a subsequent removal that was neither proven beyond a reasonable doubt at trial nor admitted by Covian.” Id. at 1097-98. Martinez analogizes his case to Coviwrtr-Sandoval, contending that the date of his removal was not proven to a jury or admitted by him. Since the jury never explicitly found the fact that Martinez’s prior removal was after his 1992 aggravated felony conviction, he argues that he was improperly subjected to a twenty-year statutory-maximum sentence based on facts found only by the district judge. We are not persuaded by Martinez’s application of Co-vianSandovdL In Covian-Sandoval, the prior removal admitted by the defendant was inadequate to support" }, { "docid": "22468317", "title": "", "text": "of the crime for which Covian was convicted. Accordingly, it must be proved beyond a reasonable doubt to a jury or admitted by the defendant. Id. at 1098 (citations omitted). Because “[t]he fact of a prior conviction is the only fact that both increases a penalty beyond the statutory maximum and can be found by a sentencing court,” we concluded that the district court erred by “[finding] the existence of a subsequent removal that was neither proven beyond a reasonable doubt at trial nor admitted by Covian.” Id. at 1097-98. Martinez analogizes his case to Coviwrtr-Sandoval, contending that the date of his removal was not proven to a jury or admitted by him. Since the jury never explicitly found the fact that Martinez’s prior removal was after his 1992 aggravated felony conviction, he argues that he was improperly subjected to a twenty-year statutory-maximum sentence based on facts found only by the district judge. We are not persuaded by Martinez’s application of Co-vianSandovdL In Covian-Sandoval, the prior removal admitted by the defendant was inadequate to support the application of the twenty-year statutory maximum, so the district judge improperly found the fact of another, qualifying, removal. By contrast, in this case, the jury found beyond a reasonable doubt that Martinez had been previously removed from the United States, because prior removal is an element of the crime defined in § 1326(a). At trial, the jury was presented with evidence that Martinez was deported in both 1994 and 1999. Both of these removals were after Martinez’s 1992 aggravated felony conviction and thus were adequate to support the application of the twenty-year statutory-maximum sentence. The district court did not need to determine the date of Martinez’s deportation because the jury necessarily found that Martinez was deported after his prior convictions. The salient point is that the only evidence of deportation presented to the jury was from 1994 and 1999, and both were after his 1992 aggravated felony conviction. The fact of “removal ... subsequent to a conviction for commission of an aggravated felony,” § 1326(b)(2) (emphasis added), was proven to the jury beyond a" }, { "docid": "21303701", "title": "", "text": "constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is reviewed for plain error. United States v. Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir.2001). “Under the plain error standard, [Lopez] must establish an error, that was plain, and that affected his substantial rights.” United States v. Buckland, 289 F.3d 558, 563 (9th Cir.2002) (en banc). Lopez’s challenge to the district court’s finding of the fact of his prior conviction is foreclosed by our precedent. See United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir.2005) (noting that this Court continues to be bound by the Supreme Court’s holding in Almendarez-Torres ), cert. denied, 547 U.S. 1114, 126 S.Ct. 1911, 164 L.Ed.2d 667 (2006); see also, United States v. Delaney, 427 F.3d 1224, 1226 (9th Cir.2005) (stating that “[t]he Supreme Court has made clear that the fact of a prior conviction need not be proved to a jury beyond a reasonable doubt or admitted by the defendant to satisfy the Sixth Amendment”). Lopez also contends that his sentence violates Apprendi because of the requirement that the removal subsequent to a prior conviction be admitted by the defendant or proven to a jury beyond a reasonable doubt. See United States v. Covian-Sandoval, 462 F.3d 1090, 1097-98 (9th Cir.2006); see also United States v. Zepeda-Martinez, 470 F.3d 909, 910 (9th Cir.2006); United States v. Martinez-Rodriguez, 472 F.3d 1087, 1092 (9th Cir.2007), as amended. However, the record in this case reflects that Lopez admitted both the date of his prior conviction (2002) and the date of his subsequent deportation (2004). Thus, no Apprendi violation occurred when the district court applied the established temporal sequence to enhance Lopez’s sentence. See Covian-Sandoval, 462 F.3d at 1098 (recognizing that if the removal subsequent to a prior conviction is admitted, no Apprendi violation occurs). We also note the additional fact that only one deportation was presented to the jury in this case. As we recognized in Martinez-Rodriguez, 472 F.3d at 1094, in such a circumstance, the jury “necessarily found, beyond a reasonable doubt, that [Lopez] had been previously" }, { "docid": "21303706", "title": "", "text": "earlier admitted that he was convicted of a felony in 2002. Therefore, to trigger the sentencing enhancement under § 1326(b)(2), Lopez would have to have been removed at some point subsequent to that conviction. WARDLAW, Circuit Judge, concurring' in part and concurring in the judgment: I concur in the judgment and in Parts I, II-A, II-B and II — C(i) of the majority opinion. I disagree with the majority that Lopez’s testimony can be fairly characterized as an admission as to the date of his removal, and the date certainly was not proved to the jury. Although I would find Apprendi error, however, I agree, that we must affirm Lopez’s sentence because its imposition was not plain error. To trigger the sentencing enhancement under 8 U.S.C. § 1326(b)(2), “an alien must first be convicted of an aggravated felony, then be removed, and then attempt to reenter, in that order.” United States v. Covian-Sandoval, 462 F.3d 1090, 1097 (9th Cir.2006). Under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny, the fact of a prior removal must be “proved beyond a reasonable doubt to a jury or admitted by the defendant.” Covian-Sandoval, 462 F.3d at 1098. The majority finds an admission as to the date of removal from the following ambiguous exchange: Prosecutor: In fact, you had been deported four times, correct? Defense counsel: Objection, your honor; 404(b). The Court: Sustained. Prosecutor: You testified yesterday and admitted that you had been convicted of a felony? Lopez: Yes, sir. Prosecutor: And at the summer of 2004, you were in Mexicali? Lopez: Yes, sir. • Prosecutor: Had you been deported from the United States? Lopez: Yes, sir. Lopez responds affirmatively to questions of whether he 1) was in Mexicali in the summer of 2004, and 2) had been deported from the United States. His presence in Mexico in 2004 does not establish that he was deported in that year. His answers would have been the same even if he had been deported years earlier. Cf. United States v. Lopez, 625 F.2d 889, 897 (9th Cir.1980)" }, { "docid": "22280370", "title": "", "text": "HALL, Senior Circuit Judge: In United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir.2006), we determined that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) prevents a sentencing court from enhancing an alien’s sentence based upon a removal subsequent to a prior conviction unless that removal has been admitted by the defendant or proven to a jury beyond a reasonable doubt. Covian-Sandoval, 462 F.3d at 1097. We now must decide whether harmless error review applies to such an error when the issue has properly been raised below. In light of the Supreme Court’s ruling in Washington v. Recuenco, — U.S. -, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), we hold that Apprendi errors are reviewed for harmlessness using the framework of Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Because we conclude that the sentencing court’s error was harmless, we affirm. I. On September 5, 2004, appellant Felipe Zepeda-Martinez (“Zepeda”) was found by customs agents near Otay Mesa, Califor nia. After being read and waiving his Miranda rights, Zepeda admitted that he was a citizen and native of Mexico with no legal right to be in the United States. On November 5, 2004, a grand jury returned a one-count indictment charging Zepeda with being a removed alien found in the United States in violation of 8 U.S.C. § 1326. The indictment originally contained a special allegation stating that Zepeda was removed after May 21, 2002. On that date, the government would allege, Zepeda had been convicted in California state court of corporal injury to a spouse, in violation of California Penal Code § 273.5. If proven, the special allegation would have shown that Zepeda was removed following the conviction. That showing, in turn, would have subjected Zepeda to an increased maximum sentence under 8 U.S.C. § 1326 and a sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). However, Zepeda successfully moved to strike the allegation. On March 1, 2005, Zepeda pleaded guilty to one count of being a removed alien found in the United States. During his plea colloquy, he" }, { "docid": "22767937", "title": "", "text": "maximum and can be found by a sentencing court. United States v. Fresnares-Torres, 235 F.3d 481, 482 (9th Cir.2000). The premise for this exception is that prior convictions are “the product of proceedings that afford crucial procedural protections — particularly the right,to a jury trial and proof beyond a reasonable doubt.” United States v. Tighe, 266 F.3d 1187, 1194 (9th Cir.2001). Accordingly, the exception is “limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt.” Id. The fact of a prior removal plainly falls outside the scope of this exception, for immigration proceed ings are civil, not criminal, lacking both juries and the reasonable doubt standard. See, e.g., United States v. Solano-Godines, 120 F.3d 957, 960-61 (9th Cir.1997). Moreover, unlike the fact of a prior conviction at issue in Almendarez-Torres, the fact of an alien’s prior removal or departure is plainly one of the elements of the crime for which Covian was convicted. See 8 U.S.C. § 1326(a); Gracidas-Ulibarry, 231 F.3d at 1196. Accordingly, it must be proved beyond a reasonable doubt to a jury or admitted by the defendant. See, e.g., Apprendi, 530 U.S. at 477, 120 S.Ct. 2348; Almendarez-Torres, 523 U.S. at 239, 118 S.Ct. 1219; Fresnares-Torres, 235 F.3d at 482. Here, the sentencing court did not merely find the fact of a prior conviction. Instead, it found the existence of a subsequent removal that was neither proven beyond a reasonable doubt at trial nor admitted by Covian. Indeed, because Co-vian admitted a particular' — and different — date of removal at trial, it is clear that the removal allowing his conviction did not happen at a time subsequent to his felony conviction. We reiterate today that the only exception to Apprendi’s rule involves the fact of a prior conviction. Accordingly, the enhancement of Covian’s sentence, based on the factual finding of a subsequent removal, constituted plain error. . Turning to the next prong in the plain error analysis, however, we find that this error did not violate Covian’s substantial rights — that is," }, { "docid": "5159785", "title": "", "text": "to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. The government must charge these facts in the indictment as well. See, e.g., Salazar-Lopez, 506 F.3d at 751-52. Applying this rule to the increased maximum in § 1326(b), we have held sentences constitutionally defective when the date of a defendant’s removal was neither admitted by the defendant nor proved to a jury. See United States v. Covian-Sandoval, 462 F.3d 1090, 1097-98 (9th Cir.2006). Extending the rule of Covian-Sandoval to the sufficiency of an indictment, we held in Salazar-Lopez that an enhanced sentence was defective because “the Government never alleged in the indictment that [the defendant] had been removed on a specific, post-conviction date.” Salazar-Lopez, 506 F.3d at 751. The removal date is “necessary to determine whether the removal had followed the conviction in time.” Id. (emphasis in original). As the district court here recognized, we held that Apprendi required “the date of removal, or at least the fact that Salazar-Lopez had been removed after his conviction” to appear in the indictment. Id. at 752 (emphasis in original). We further clarified this rule in United States v. Calderon-Segura, 512 F.3d 1104, 1111 (9th Cir.2008), explaining that “[u]nder Salazar-Lopez, in order for a defendant to be eligible for an enhanced statutory maximum under § 1326(b), the indictment must allege, in addition to the facts of prior removal and subsequent reentry, either the date of the prior removal or that it occurred after a qualifying prior conviction.” Id. (emphasis in original). These cases stated the rule in the disjunctive, requiring either the removal date or that it occurred after a qualifying felony conviction, which necessarily means an alleged removal date is alone sufficient to support a § 1326(b) sentence enhancement. See id. A possible ambiguity remains, however, at least enough to produce this appeal. In Salazar-Lopez and Calderon-Segura, the government alleged neither a date of removal nor a sequence of felony conviction followed by removal. Mendoza-Zaragoza’s case is apparently the first to pose whether an allegation of removal dates without explicitly alleging the sequence satisfies Apprendi." }, { "docid": "22468304", "title": "", "text": "paragraph, change “Martinez-Rodriguez” to “Martinez.” On slip opinion page 18688, lines 4 and 5, change “Martinez-Rodriguez’s” to “Martinez’s.” On slip opinion page 18688, change roman numeral “III” to roman numeral “IV.” OPINION A jury convicted David Martinez-Rodriguez (“Martinez”) of re-entering the United States after removal in violation of 8 U.S.C. § 1326(a). On August 23, 2005, the district court sentenced Martinez to seventy-seven months imprisonment with three years supervised release. Martinez challenges both his conviction and sentence. Martinez challenges his conviction by arguing that the district court erred by permitting the government to introduce evidence that he had been previously removed from the United States on two separate occasions. Martinez asserts that the district court erred by not excluding the evidence of his two prior removals under Federal Rule of Evidence 404(b), which excludes evidence of specific instances of conduct in order to show propensity. Martinez also argues that the prejudicial effect of this evidence outweighed its probative value, rendering the evidence inadmissible under Federal Rule of Evidence 403. Martinez challenges his sentence on two grounds. First, relying on our decision in United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir.2006), and the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Martinez argues that the district court improperly found that his prior removal “was subsequent to a conviction for commission of an aggravated felony,” § 1326(b)(2). Martinez argues that he never admitted this fact, nor was this fact ever proven to a jury beyond a reasonable doubt. The district court relied on Martinez’s prior removal subsequent to his aggravated felony conviction to increase his statutory-maximum sentence from two to twenty years under § 1326(b)(2). Second, Martinez argues that the district court erred in finding that his prior conviction for possession of marijuana for sale under California Health and Safety Code section 11359 was a drug trafficking offense under the Federal Sentencing Guidelines. The district court relied on Martinez’s prior conviction for a drug trafficking offense to apply a sixteen-level sentence enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A) (2004). 28 U.S.C. §" }, { "docid": "22767932", "title": "", "text": "the record reflect any confusion or uncertainty on Covian’s part during the hearing. Under the circumstances, the district court’s error was not a “wholesale failure to comply with the requirements of Rule 11.” Pencil 314 F.3d at 1158. In sum, it is clear that Covian adequately “possesse[d] an understanding of the law in relation to the facts.” United States v. Portillo-Cano, 192 F.3d 1246, 1251 (9th Cir.1999) (internal quotation marks and citation omitted). Accordingly, the court’s error is insufficiently grave to constitute a “miscarriage of justice” that “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 736, 113 S.Ct. 1770 (internal quotation marks and citation omitted). Covian’s claim therefore does not merit relief under the plain error standard. IV. Covian also claims that the district court lacked the authority to increase his sentence based on facts it found at sentencing. He does not dispute the substance of any facts the district court found; instead, he only challenges the court’s authority to enhance his sentence based on such fact-finding. Under Apprendi and its progeny, “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Underlying the issue in this case is the provision of § 1326 that increases the maximum sentence for an alien convicted of attempted entry after removal if the alien’s “removal was subsequent to a conviction for commission of an aggravated felony.” 8 U.S.C. § 1326(b)(2). Covian claims that his guilty plea admitted neither the prior conviction nor the subsequent removal, and that the court’s increased sentence under § 1326(b)(2) therefore violated Apprendi twice over. We agree with Covian as to the subsequent removal, though not as to the prior conviction, but we again find that relief is not warranted under the plain error standard. A. Under the Supreme Court’s decision" }, { "docid": "22058563", "title": "", "text": "penalty under § 1326 is two years of imprisonment and one year of supervised release, unless the previous removal was subsequent to certain types of convictions. See 8 U.S.C. § 1326(a),(b); 18 U.S.C. §§ 3583(b), 3559(a). In this case, the district court found that Salazar-Lopez had been removed after such a felony conviction, and so it determined that the applicable statutory maximum was ten years of imprisonment and three years of supervised release. 8 U.S.C. § 1326(b)(1), 18 U.S.C. §§ 3583(b), 3559(a). On appeal, Salazar-Lopez renews his contention that his exposure to § 1326(b)’s higher statutory maximum violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because neither the date of his prior removal nor the temporal relationship between the removal and his prior conviction was alleged in the indictment and proved to a jury. We agree that an Apprendi error occurred here. In United States v. Covian-Sandoval, 462 F.3d 1090, 1096-98 (9th Cir.2006), we recognized that the fact of a prior conviction need not have been submitted to the jury under Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but nevertheless held that an Apprendi error had occurred where the date of a prior removal (necessary to determine whether the removal had followed the conviction in time) was not admitted by the defendant or found by a jury. A similar error is present here, since the jury was presented with evidence of two removals, one which preceded Salazar-Lopez’s felony conviction and one which followed, and was never asked to find that the later removal had indeed occurred. Cf. United States v. Martinez-Rodriguez, 472 F.3d 1087, 1093-94 (9th Cir.2007) (finding no error even though the jury did not find an exact date of removal, because both removals put before the jury were subsequent to the defendant’s felony conviction). Salazar-Lopez’s case differs slightly from Covian-Sandoval, however, because the error to which he points on appeal is not only that the jury never made the required finding but also that the Government never alleged in the indictment that he had" }, { "docid": "21303709", "title": "", "text": "States v. Cabaccang, 481 F.3d 1176, 1184 (9th Cir.2007) (quoting United States v. Evans-Martinez, 448 F.3d 1163, 1166 (9th Cir.2006)). We have already held that “the enhancement of[a § 1326] sentence, based on the factual finding of a subsequent removal, constitute^] plain error.” Covian-Sandoval, 462 F.3d at 1098. However, Lopez’s substantial rights were not violated, and thus he cannot obtain relief, because he was not prejudiced “in a manner that affected the outcome of the ... proceedings.” United States v. Buckland, 289 F.3d 558, 568 (9th Cir.2002) (en banc) (internal quotation marks omitted). In Covi-an-Sandoval, we noted that the inquiry is “whether it was clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error,” and that, “[e]ritieally, the defendant bears the burden of raising a reasonable doubt as to the fact [of prior removal].” 462 F.3d at 1098. We held that Covian had not met this burden because he had “practically concede^]” that he was removed subsequent to his conviction for an aggravated felony. Id. Specifically, he had never objected to the allegation of the subsequent removal contained in his presentence report. Id. Similarly, Lopez never objected to the allegation of a 2004 deportation in his presen-tence report. “Most significantly, [Lopez’s] arguments to the sentencing court effectively conceded that a sentence enhancement under § 1326(b) would be appropriate.” Id. Had Lopez not been removed subsequent to an aggravated felony conviction, the statutory maximum sentence would have been two years. 8 U.S.C. § 1326(a). But at sentencing, Lopez’s counsel “agree[d]” with the district court’s tentative sentence of 30 months, a sentence exceeding the § 1326(a) statutory maximum but consistent with an enhanced sentence under § 1326(b). By accepting the district court’s tentative sentence, Lopez “effectively conceded” the relevant chronological sequence of conviction and removal. Covian-Sandoval, 462 F.3d at 1098. Therefore, Lopez cannot meet his burden of showing that his substantial rights were violated. We should affirm the sentence because its imposition was not plain error under Olano. . Despite the defendants’ shared last name, they are unrelated." }, { "docid": "22767933", "title": "", "text": "Apprendi and its progeny, “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Underlying the issue in this case is the provision of § 1326 that increases the maximum sentence for an alien convicted of attempted entry after removal if the alien’s “removal was subsequent to a conviction for commission of an aggravated felony.” 8 U.S.C. § 1326(b)(2). Covian claims that his guilty plea admitted neither the prior conviction nor the subsequent removal, and that the court’s increased sentence under § 1326(b)(2) therefore violated Apprendi twice over. We agree with Covian as to the subsequent removal, though not as to the prior conviction, but we again find that relief is not warranted under the plain error standard. A. Under the Supreme Court’s decision in Almendarez-Torres v. United States, a judge may enhance a sentence under § 1326(b) for a prior conviction even if the fact of the conviction was not charged in the indictment, submitted to a jury, or proved beyond a reasonable doubt. See 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2000). Covian argues that the Supreme Court has effectively overruled Almendarez-Tor-res, and, relatedly, that recent Supreme Court decisions create constitutional doubt that should compel us to limit the holding of Almendarez-Torres to cases in which the defendant admits the prior conviction during a guilty plea. Covian also argues that Apprendi renders unconstitutional the provisions of § 1326 that allow a judge to increase the maximum sentence from two years to twenty. All of these arguments, however, are squarely foreclosed by our precedents. See, e.g., United States v. Beng-Salazar, 452 F.3d 1088 (9th Cir.2006); United States v. Diaz-Argueta, 447 F.3d 1167, 1170 (9th Cir.2006); United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir.2005). We" }, { "docid": "22058577", "title": "", "text": "result would have been obtained had the question been properly placed before the grand and petit juries, this particular question concerning the date of one of Salazar-Lopez’s removals is not one of them. In light of the record here, “we are satisfied beyond a reasonable doubt that ... the result ‘would have been the same absent the error.’ ” Zepeda-Martinez, 470 F.3d at 913-14 (quoting Neder, 527 U.S. at 19, 119 S.Ct. 1827). III. Conclusion Although the temporal relationship between Salazar-Lopez’s removal and his prior conviction should have been alleged in the indictment and proved to the jury, we nevertheless affirm the sentence imposed because we find that this error was harmless in his case. AFFIRMED. . In this opinion we address only Salazar-Lopez’s sentencing contentions. We resolve his challenge to his conviction in an accompanying memorandum disposition. . This difference in statutory maximum sentences also results in a difference as to the maximum term of supervised release that can be imposed. Because § 1326(a) has a maximum sentence of two years, only one year of supervised release can follow the prison term, while the higher statutory maximum of § 1326(b)(1) means that the imposition of up to three years of supervised release is permitted. See 8 U.S.C. § 1326(a),(b); 18 U.S.C. §§ 3583(b), 3559(a). . Salazar-Lopez's other sentencing contentions, that we ought to limit Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), to its facts under the doctrine of constitutional doubt, that Almendarez-Torres has been overruled, and that § 1326(b) is unconstitutional, are foreclosed by Ninth Circuit precedent. United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006) (citing United States v, Beng-Salazar, 452 F.3d 1088 (9th Cir.2006); United States v. Diaz-Argueta, 447 F.3d 1167, 1170 (9th Cir.2006); United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir.2005)). . The Government argues that we should not follow Covian-Sandoval because it conflicts with other Circuit precedent. We see no conflict with the first case the Government cites, United States v. Castillo-Rivera, 244 F.3d 1020, 1025 (9th Cir.2001). Castillo-Rivera addressed only the continuing viability of" }, { "docid": "22468315", "title": "", "text": "conduct was neither admitted nor charged in the indictment, presented to a jury, and proven beyond a reasonable doubt.” Reyes-Pacheco, 248 F.3d at 945. The second step in determining whether the district court correctly subjected Martinez to the twenty-year statutory-maximum sentence in § 1326(b)(2) requires us to examine whether the district court correctly found that Martinez had been removed from the United States and that the removal occurred after his prior convictions for possession of marijuana for sale. In finding Martinez guilty of illegal reentry under § 1326(a), the jury necessarily found that Martinez had been removed from the United States, because prior removal is an element of the government’s § 1326(a) case. However, Martinez argues that because he did not admit and the jury did not find the date of his prior removal, his statutory-maximum sentence was only two years. He argues that the district judge violated Apprendi by finding that his prior removal was subsequent to his 1992 aggravated felony conviction. In support of this argument, Martinez relies on our decision in Covian-Sandoval, 462 F.3d 1090. In Coviavr-Sandoval, the defendant pled guilty to a charge of illegal re-entry and admitted that he was deported in 1997. See id. at 1092. At sentencing, the district court, consistent with Almendarez-Torres, found that the defendant had been convicted of an aggravated felony in 2002. See id. at 1097. Because the defendant’s previous removal in 1997 was prior to his 2002 aggravated felony conviction, he did not qualify for the twenty-year statutory-maximum sentence in § 1326(b)(2). However, the district court, relying on the PSR, found that the defendant had been again deported in 2004. See id. The district court thus applied the twenty-year statutory-maximum sentence because the defendant was deported subsequent to his 2002 aggravated felony conviction. Id. We held that it was error for the district court to rely on the 2004 removal to enhance the defendant’s statutory-maximum sentence. Id. Citing Apprendi, we explained that unlike the fact of a prior conviction at issue in Almendarez-Torres, the fact of an alien’s prior removal or departure is plainly one of the elements" }, { "docid": "22468314", "title": "", "text": "Supreme Court held that § 1326(b)(2) “simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime.” 523 U.S. at 226, 118 S.Ct. 1219. The Court in Almendarez-Torres rejected the argument that, because the fact of recidivism increased the maximum term to which a defendant could be sentenced, recidivism was an element of the crime that must be charged in the indictment and proven beyond a reasonable doubt. Id. at 239, 118 S.Ct. 1219. Martinez argues that the Supreme Court has effectively overruled Almenda-rez-Torres. We again reiterate that, while Apprendi may cast doubt on the continuing viability of Almendarez-Torres, Al-mendarez-Toires remains the law unless and until it is overruled by the Supreme Court. Reyes-Pacheco, 248 F.3d at 945; United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000). Thus, the district court properly concluded that Martinez’s convictions for possession for marijuana for sale were aggravated felony convictions. We hold that “[t]he district court did not err by considering [Martinez’s] prior aggravated felony conviction[s] despite the fact that such conduct was neither admitted nor charged in the indictment, presented to a jury, and proven beyond a reasonable doubt.” Reyes-Pacheco, 248 F.3d at 945. The second step in determining whether the district court correctly subjected Martinez to the twenty-year statutory-maximum sentence in § 1326(b)(2) requires us to examine whether the district court correctly found that Martinez had been removed from the United States and that the removal occurred after his prior convictions for possession of marijuana for sale. In finding Martinez guilty of illegal reentry under § 1326(a), the jury necessarily found that Martinez had been removed from the United States, because prior removal is an element of the government’s § 1326(a) case. However, Martinez argues that because he did not admit and the jury did not find the date of his prior removal, his statutory-maximum sentence was only two years. He argues that the district judge violated Apprendi by finding that his prior removal was subsequent to his 1992 aggravated felony conviction. In support of this argument, Martinez relies on our decision in Covian-Sandoval," }, { "docid": "22767936", "title": "", "text": "removal does not support a sentence enhancement, and there was no mention in the indictment or at trial of any other removal. At sentencing, however, the court found that Covian was removed again in 2004, eight days before his attempted reentry. Because this second removal fell between Co-vian’s felony conviction and his subsequent attempt to reenter the United States, the court issued an enhanced sentence under § 1326(b)(2). Covian does not challenge the substance of any of these facts. Instead, he argues that, under Apprendi, if a specific removal is admitted at trial, an enhanced sentence cannot be triggered under § 1326(b) by a different removal that he did not admit. We agree with Covian, but we again find that relief is not warranted under the high bar of the plain error standard of review. It is clear that the sentencing court’s reliance on the 2004 removal was error under Apprendi and that this error was plain. The fact of a prior conviction is the only fact that both increases a penalty beyond the statutory maximum and can be found by a sentencing court. United States v. Fresnares-Torres, 235 F.3d 481, 482 (9th Cir.2000). The premise for this exception is that prior convictions are “the product of proceedings that afford crucial procedural protections — particularly the right,to a jury trial and proof beyond a reasonable doubt.” United States v. Tighe, 266 F.3d 1187, 1194 (9th Cir.2001). Accordingly, the exception is “limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt.” Id. The fact of a prior removal plainly falls outside the scope of this exception, for immigration proceed ings are civil, not criminal, lacking both juries and the reasonable doubt standard. See, e.g., United States v. Solano-Godines, 120 F.3d 957, 960-61 (9th Cir.1997). Moreover, unlike the fact of a prior conviction at issue in Almendarez-Torres, the fact of an alien’s prior removal or departure is plainly one of the elements of the crime for which Covian was convicted. See 8 U.S.C. § 1326(a); Gracidas-Ulibarry, 231 F.3d" }, { "docid": "21303702", "title": "", "text": "his sentence violates Apprendi because of the requirement that the removal subsequent to a prior conviction be admitted by the defendant or proven to a jury beyond a reasonable doubt. See United States v. Covian-Sandoval, 462 F.3d 1090, 1097-98 (9th Cir.2006); see also United States v. Zepeda-Martinez, 470 F.3d 909, 910 (9th Cir.2006); United States v. Martinez-Rodriguez, 472 F.3d 1087, 1092 (9th Cir.2007), as amended. However, the record in this case reflects that Lopez admitted both the date of his prior conviction (2002) and the date of his subsequent deportation (2004). Thus, no Apprendi violation occurred when the district court applied the established temporal sequence to enhance Lopez’s sentence. See Covian-Sandoval, 462 F.3d at 1098 (recognizing that if the removal subsequent to a prior conviction is admitted, no Apprendi violation occurs). We also note the additional fact that only one deportation was presented to the jury in this case. As we recognized in Martinez-Rodriguez, 472 F.3d at 1094, in such a circumstance, the jury “necessarily found, beyond a reasonable doubt, that [Lopez] had been previously removed subsequent to his prior aggravated felony convictions.” Accordingly, because Lopez admitted the dates of his conviction and subsequent removal and because the jury necessarily found the date of removal, no Apprendi violation occurred in this case. III. CONCLUSION The prosecutor impermissibly commented on Lopez’s right to remain silent in violation of the rule articulated in Doyle. However, the Doyle error was harmless beyond a reasonable doubt because of the limited reference to Lopez’s post-Miraraia silence and the overwhelming evidence of Lopez’s guilt. Although the prosecutor’s questions were impermissible, Lopez’s due process rights were not violated because the questions were immediately objected to, and the district court gave appropriate limiting instructions. It is not reasonably likely that the jury interpreted the district court’s instruction that Lopez was “presumed innocent unless and until proved guilty” as shifting the burden of proof to Lopez. Finally, because the fact of Lopez’s prior conviction was admitted by him and necessarily found by the jury, no Ap-prendi violation occurred. CONVICTION AND SENTENCE AFFIRMED. . Miranda v. Arizona, 384 U.S. 436," }, { "docid": "5159784", "title": "", "text": "of his plea — including his removal dates — he again objected, so the court refused to accept his plea. Thereafter, Mendoza-Zaragoza agreed to a conditional guilty plea, under which he pled guilty to “illegal reentry in violation of 8 U.S.C. § 1326(b),” admitted his removal dates and reserved in writing the right to “appeal the district court’s failure to take a guilty plea ... to the crime charged in the indictment.” The district court imposed a 72-month sentence, which Mendoza-Zaragoza challenges only insofar as it resulted from the district court’s rejection of his guilty plea under § 1326(a). We review that rejection for abuse of discretion. See In re Vasquez-Ramirez, 443 F.3d 692, 700 (9th Cir.2006) (citing United States v. Maddox, 48 F.3d 555, 556, 560 (D.C.Cir.1995)). We have jurisdiction under 28 U.S.C. § 1291, and we affirm the sentence imposed. II. A. Under the familiar rule of Apprend% “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. The government must charge these facts in the indictment as well. See, e.g., Salazar-Lopez, 506 F.3d at 751-52. Applying this rule to the increased maximum in § 1326(b), we have held sentences constitutionally defective when the date of a defendant’s removal was neither admitted by the defendant nor proved to a jury. See United States v. Covian-Sandoval, 462 F.3d 1090, 1097-98 (9th Cir.2006). Extending the rule of Covian-Sandoval to the sufficiency of an indictment, we held in Salazar-Lopez that an enhanced sentence was defective because “the Government never alleged in the indictment that [the defendant] had been removed on a specific, post-conviction date.” Salazar-Lopez, 506 F.3d at 751. The removal date is “necessary to determine whether the removal had followed the conviction in time.” Id. (emphasis in original). As the district court here recognized, we held that Apprendi required “the date of removal, or at least the fact that Salazar-Lopez had been removed after his conviction” to appear" }, { "docid": "22058562", "title": "", "text": "subsequent to a 2003 felony conviction. Salazar-Lopez objected, arguing that only the two-year maximum under § 1326(a), and not the ten-year maximum provided for in § 1326(b)(1), was applicable to his case, because the facts necessary to sustain § 1326(b)(1)’s sentencing enhancement had not been charged in the indictment and proved beyond a reasonable doubt to a jury. The district court rejected Salazar-Lopez’s argument and largely adopted the pre-sentence report’s sentencing calculations, with the exception that the court decreased Salazar-Lopez’s offense level by two for acceptance of responsibility. Salazar-Lopez was sentenced to 21 months of imprisonment and three years of supervised release. II. Analysis Because Salazar-Lopez made a timely challenge to his sentence below, he has properly preserved his claim of error. “Preserved Apprendi challenges are reviewed de novo.” United States v. Hollis, 490 F.3d 1149, 1154 (9th Cir.2007) (citing United States v. Smith, 282 F.3d 758, 771 (9th Cir.2002)). A. The Sixth Amendment Violation An alien found in the United States after having previously been removed violates 8 U.S.C. § 1326. The maximum statutory penalty under § 1326 is two years of imprisonment and one year of supervised release, unless the previous removal was subsequent to certain types of convictions. See 8 U.S.C. § 1326(a),(b); 18 U.S.C. §§ 3583(b), 3559(a). In this case, the district court found that Salazar-Lopez had been removed after such a felony conviction, and so it determined that the applicable statutory maximum was ten years of imprisonment and three years of supervised release. 8 U.S.C. § 1326(b)(1), 18 U.S.C. §§ 3583(b), 3559(a). On appeal, Salazar-Lopez renews his contention that his exposure to § 1326(b)’s higher statutory maximum violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because neither the date of his prior removal nor the temporal relationship between the removal and his prior conviction was alleged in the indictment and proved to a jury. We agree that an Apprendi error occurred here. In United States v. Covian-Sandoval, 462 F.3d 1090, 1096-98 (9th Cir.2006), we recognized that the fact of a prior conviction need not have been submitted to" }, { "docid": "22767934", "title": "", "text": "in Almendarez-Torres v. United States, a judge may enhance a sentence under § 1326(b) for a prior conviction even if the fact of the conviction was not charged in the indictment, submitted to a jury, or proved beyond a reasonable doubt. See 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2000). Covian argues that the Supreme Court has effectively overruled Almendarez-Tor-res, and, relatedly, that recent Supreme Court decisions create constitutional doubt that should compel us to limit the holding of Almendarez-Torres to cases in which the defendant admits the prior conviction during a guilty plea. Covian also argues that Apprendi renders unconstitutional the provisions of § 1326 that allow a judge to increase the maximum sentence from two years to twenty. All of these arguments, however, are squarely foreclosed by our precedents. See, e.g., United States v. Beng-Salazar, 452 F.3d 1088 (9th Cir.2006); United States v. Diaz-Argueta, 447 F.3d 1167, 1170 (9th Cir.2006); United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir.2005). We therefore must reject Covian’s contention that the district court could not enhance his sentence based on its own finding of the fact of a prior felony conviction. B. We turn to the district court’s finding that Covian was removed after his felony conviction. The plain language of § 1326 clearly does not allow a district court to apply the heightened maximum sentence to an alien whose removal was prior to a felony conviction, rather than “subsequent” to it. 8 U.S.C. § 1326(b)(2). In other words, to trigger the increase in the statutory maximum sentence under § 1326(b)(2), an alien must first be convicted of an aggravated felony, then be removed, and then attempt to reenter, in that order. See id.; United States v. Luna-Madellaga, 315 F.3d 1224, 1226 (9th Cir.2003) (“All that the statute requires is that the alien [attempt to] reenter the United States illegally after having been removed subsequent to an aggravated felony conviction.”). The removal that Covian admitted at trial was in 1997. Because his felony conviction was not until 2002, that" } ]

[ { "docid": "14528412", "title": "", "text": "appealed, and we appointed counsel to represent him on appeal. DISCUSSION We review de novo the district court’s grant of summary judgment, resolving all ambiguities and factual inferences in favor of Bennett, the non-movant. See Davis v. New York, 316 F.3d 93, 99-100 (2d Cir.2002). In addition, because Bennett appeared pro se in the district court, we read his papers liberally, interpreting them “ 'to raise the strongest arguments that they suggest.’ ” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). But because prisoner retaliation claims are “easily fabricated,” and accordingly “pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration,” we are careful to require non-conclusory allegations. Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.2001), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). In order to prevail on his retaliation claims, Bennett bears the burden of showing, first, that he engaged in constitutionally protected conduct and, second, that the conduct was a substantial or motivating factor for the adverse actions taken by prison officials. See Gayle v. Gonyea, 313 F.3d 677 (2d Cir.2002) (alleging false disciplinary report); Hendricks v. Coughlin, 114 F.3d 390 (2d Cir.1997) (alleging retaliatory transfers). If Bennett makes these showings, DOCS may evade liability if it demonstrates that it would have disciplined or transferred him “ ‘even in the absence of the protected conduct.’ ” Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (quoting Mount Healthy Sch. Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). Since DOCS does not dispute that the prosecution and settlement of a lawsuit and the filing of grievances were constitutionally protected activities, the first element is not at issue. DOCS does, however, contest the existence of a causal connection between the protected activity and the disciplinary actions and transfers. We conclude that Bennett met his initial burden of producing sufficient evidence to raise a question of material fact about whether retaliation was a substantial factor in the transfers" } ]

[ { "docid": "20254130", "title": "", "text": "Rojas appeals only the rulings entering summary judgment on her hostile work environment and retaliation claims against the Diocese. DISCUSSION We review the District Court’s entry of summary judgment de novo. See Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir.2002). Summary judgment is appropriate when, construing the evidence in the light most favorable to the non-moving party, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” for these purposes when it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. 2505 (emphasis added). In weighing the evidence on a motion for summary judgment, “the judge must ask ... not whether the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Id. The burden of demonstrating that no material fact exists lies with the moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The District Court’s Assessment of Rojas’s Testimony The District Court granted summary judgment after concluding that Rojas had offered “sham evidence” in opposition to the defendants’ motions. In other words, it concluded that no reasonable juror could believe certain of Rojas’s factual averments in opposition to summary judgment, given contradictory statements she had made in prior sworn testimony and pleadings. Although a district court generally “should not weigh evidence or assess the credibility of witnesses,” Hayes v. N.Y. City Dept of Corr., 84 F.Sd 614, 619 (2d Cir.1996), we have held that in the rare circumstance" }, { "docid": "22817991", "title": "", "text": "as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A disputed fact is “material” if it might affect the outcome of the suit under the governing law, and the dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). We construe the factual record and reasonable inferences therefrom in the light most favorable to the nonmovant. Gaylor v. Does, 105 F.3d 572, 574 (10th Cir.1997). I. Retaliation Claims We review Ms. Richmond’s retaliation claims under the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). See Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997). Under that standard, the plaintiff initially must establish a prima facie case. Id. The burden then shifts to the employer to offer a legitimate non-retaliatory reason for the plaintiffs termination. Id. If the employer offers such a reason, the burden then shifts back to the plaintiff to show that “ ‘there is a genuine dispute of material fact as to whether the employer’s proffered reason for the challenged action is pretextual.’ ” Id. (quoting Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995)). In order to establish a prima facie claim for FLSA or FMLA retaliation, a plaintiff must show that: (1) she engaged in activity protected under either act; (2) she subsequently suffered adverse action by the employer; and (3) a causal connection exist ed between the employee’s activity and the adverse action. Archuleta v. Colorado Dep’t of Institutions, 936 F.2d 483, 486 (10th Cir.1991). A plaintiff can demonstrate pretext by showing “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s ... reasons for its action,” which “a reasonable factfinder could rationally find ... unworthy of credence.” Morgan, 108 F.3d" }, { "docid": "8914333", "title": "", "text": "district court must grant a motion for summary judgment if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law,” Fed.R.Civ.P. 56(c), i.e., “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A fact is “material” for these purposes if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. II. The Legal Framework An allegation that a prison official filed false disciplinary charges in retaliation for the exercise of a constitutionally protected right, such as the filing of a grievance, states a claim under § 1983. Franco v. Kelly, 854 F.2d 584, 589-90 (2d Cir.1988). A plaintiff alleging retaliatory punishment “bears the burden of showing that the conduct at issue was constitutionally protected and that the protected conduct was a substantial or motivating factor in the prison officials’ decision to discipline the plaintiff.” Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996). The burden then shifts to the defendant to show that the plaintiff would have received the same punishment even absent the retaliatory motivation. Id. at 80. The defendant can meet this burden by demonstrating that there is no dispute that the plaintiff “committed the most serious, if not all, of the prohibited conduct charged in the misbehavior report.” Hynes v. Squillace, 143 F.3d 653, 657 (2d Cir.) (per curiam), cert. denied, 525 U.S. 907, 119 S.Ct. 246, 142 L.Ed.2d 202 (1998); see also Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir.1994)(holding that the defendants met their burden when “it was undisputed that [the plaintiff] had in fact committed the prohibited conduct”). III.Applying the Legal Framework to Gayle’s Allegations" }, { "docid": "17289496", "title": "", "text": "light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993). A material fact is one that would “affect the outcome of the suit under the governing law,” and a dispute about a genuine issue of material fact occurs if the evidence is such that “a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir.1997). The Requirements For A Prima Facie Case Of Retaliation In order to establish a prima facie case of retaliation, a plaintiff must prove that: (1) he engaged in protected activity; (2) defendants were aware of the protected activity; (3) he was subjected to an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir.1996); see also Gordon v. New York City Bd. of Ed., 232 F.3d 111, 116 (2d Cir.2000); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768-69 (2d Cir.1998). The Second Circuit has held that a close temporal relationship between the protected activity and an employer’s adverse actions can be sufficient to establish causation. Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir.2002) (citing Cifra v. General Elec. Co., 252 F.3d 205, 217 (2d Cir.2001) (“The causal connection needed for proof of a retaliation claim can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.”) (internal quotation marks omitted)). For mere temporal proximity to establish causality, the intervening period must be “very close.” Clark Co. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). If the plaintiff establishes a prima facie case of retaliation, the defendant may articulate a legitimate, non-retaliatory reason for its actions. Id. at 768. Finally, if the defendant does articulate" }, { "docid": "14771295", "title": "", "text": "hearing officer’s questions in a manner consistent with his filed misbehavior report. At the conclusion of the hearing, Scott was sentenced to 180 days of confinement in a Segregated Housing Unit (solitary confinement) with loss of commissary, package and telephone privileges, and a $5.00 levy for hearing costs. C. District Court Proceedings In response to the two hearings and the resulting punishment, plaintiff instituted the present litigation in the Northern District of New York. Plaintiff and defendants both made motions for summary judgment. The district court granted defendants’ motion and denied plaintiffs motion in a judgment entered on November 5, 1999, which dismissed plaintiffs case in its entirety. From that judgment, plaintiff appeals. DISCUSSION I Standard of Review We review the district court’s grant of defendants’ motion for summary judgment de novo, see Trammell v. Keane, 338 F.3d 155, 161 (2d Cir.2003), to determine whether the record reveals any genuine issue of material fact in dispute that would preclude that result. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of fact exists if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party — here, plaintiff. II Retaliation A. Legal Standards To establish a prima facie case of First Amendment retaliation, a plaintiff must establish “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.” Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir.2002) (citing Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001)). Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case. See Flaherty v. Coughlin, 713 F.2d 10,13 (2d Cir.1983). Yet, in a retaliation case that is supported by detailed and persuasive factual- allegations summary judgment without full discovery may be inappropriate. Id. Regardless of the presence of retaliatory motive, however, a defendant may be entitled to summary" }, { "docid": "18404073", "title": "", "text": "v. Corwin, 483 F.3d 516, 526-27 (8th Cir.2007). Rather, we focus on whether a genuine issue of material fact exists for trial — an issue of material fact is genuine if the evidence is sufficient to allow a reasonable jury verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Morris contends that the district court ignored his circumstantial evidence, accepted defendants’ version of the facts and neglected to give Morris the benefit of all reasonable inferences. After careful review of the record, we find Morris’s contention is unsupported. The district court included, and properly construed and addressed, all facts relevant to Morris’s freedom of association claim. We note the district court did not address facts related to Morris’s initial grievance, Sackrey, or the potentially false complaints against Morris. Those facts, however, while they provide background, are not relevant to Morris’s freedom of association claim. B. First Amendment Retaliation Claim This court has found that the First Amendment restrains the government from retaliating against a public employee based on the employee’s speech or associations. Hughes v. Whitmer, 714 F.2d 1407, 1418 (8th Cir.1983). In order for an employee to state a claim under the First Amendment, he must show that his conduct was constitutionally protected and that the protected conduct was a “substantial” or “motivating” factor in the defendant’s action which resulted in dismissal. Green v. St. Louis Housing Authority, 911 F.2d 65, 70 (8th Cir.1990). Whether the protected conduct was a substantial or motivating factor in an employment decision is a question of fact, but the sufficiency of the evidence to create an issue of fact for the jury is solely a question of law. Cox v. Miller County R-I School Dist., 951 F.2d 927, 931 (8th Cir.1991). We analyze First Amendment employment retaliation claims with a three-step burden-shifting test. First, a public employee must show that he suf fered an adverse employment action that was causally connected to his participation in a protected activity. Duffy v. McPhillips, 276 F.3d 988, 991 (8th Cir.2002). Once the employee satisfies" }, { "docid": "22149548", "title": "", "text": "judgment on the issue of compensatory damages, because Moton failed to establish that he suffered any “physical injury, monetary loss, or other actual injury” related to his retaliation claim, as required by the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(e) (preventing recovery “for mental or emotional injury ... without a prior showing of physical injury”). II. Discussion Moton first asks us to reverse the district court’s grant of summary judgment in favor of Cowart on his retaliation claim. He argues that the district court improperly drew inferences in Cowart’s favor and that genuine issues of material fact remain as to whether there is a causal relationship between his grievance and the disciplinary reports Cowart issued against him. This Court reviews de novo summary judgment rulings and draws all inferences and reviews all evidence in the light most favorable to the non-moving party. Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1194 (11th Cir.2010); WSB-TV v. Lee, 842 F.2d 1266, 1270 (11th Cir.1988). Summary judgment is appropriate only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Bennett v. Hendrix, 423 F.3d 1247, 1249-50 (11th Cir.2005). The moving party may meet its burden to show that there are no genuine issues of material fact by demonstrating that there is a lack of evidence to support the essential elements that the non-moving party must prove at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). a. Retaliation Claim An inmate must establish three elements to prevail on a retaliation claim. Bennett, 423 F.3d at 1250. The inmate must prove that: (1) “his speech or act was constitutionally protected”; (2) “the defendant’s retaliatory conduct adversely affected the protected speech”; and (3) “there is a causal connection between the retaliatory actions and the adverse effect on speech.” Id. To establish causation, the plaintiff must show that the defendant was “subjectively motivated to discipline” the plaintiff for exercising his First Amendment rights." }, { "docid": "2985774", "title": "", "text": "affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). When reviewing the record on summary judgment, the court must draw all reasonable inferences in the light most favorable to the nonmoving party. See Larimer v. Dayton Hudson Corp., 137 F.3d 497, 500 (7th Cir.1998). To avert summary judgment, however, the nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A dispute about a material fact is genuine only if the evidence presented is such that a reasonable jury could return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). III. The Motion for Summary Judgment A. The Retaliation Claim The Court recommends granting Defendant’s motion for summary judgment on the retaliation claim because the evidence does not show that Tutman’s request for extended leave was denied in retaliation for his complaint about Vasilopulos. To establish a prima facie case of retaliation, a plaintiff must meet three elements: (1) the plaintiff engaged in protected expression; (2) the plaintiff suffered an adverse action; and (3) there was a causal link between the protected expression and the adverse action. Drake v. Minnesota Mining and Manufacturing Co., 134 F.3d 878, 885 (7th Cir.1998) (citing McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir.1997)). If the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, non-retaliatory reason for the alleged adverse action. McKenzie v. Illinois Dep’t of Transp., 92 F.3d 473, 483 (7th Cir.1996). If this is achieved, the burden then shifts back to the plaintiff to show that the defendant’s stated reason for the action is pretextual. Id. There is no" }, { "docid": "17289495", "title": "", "text": "is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1223-24 (2d Cir.1994) (internal citations omitted). If, however, “ ‘as to the issue on which sum mary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.’ ” Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir.2004) (quoting Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996)). The moving party has the burden of showing that there are no material facts in dispute, and the court must resolve all ambiguities and draw all reasonable inferences in favor of the party opposing the motion. Bickhardt v. Ratner, 871 F.Supp. 613 (S.D.N.Y.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Thus, “summary judgment may be granted if, upon reviewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993). A material fact is one that would “affect the outcome of the suit under the governing law,” and a dispute about a genuine issue of material fact occurs if the evidence is such that “a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir.1997). The Requirements For A Prima Facie Case Of Retaliation In order to establish a prima facie case of retaliation, a plaintiff must prove that: (1) he engaged in protected activity; (2) defendants were aware of the protected activity; (3) he was subjected to an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. Reed v. A.W. Lawrence & Co., Inc., 95" }, { "docid": "19784861", "title": "", "text": "Doc. 48 Ex. C at 200:17-201:10.) Mitchell filed a formal Charge of Discrimination with the New Mexico Human Rights Bureau on June 10, 2010, and he was given notice of his right to sue on his retaliation claim by the Equal Employment Opportunity Commission on September 17, 2010. (Doc. 1 Exs. A & B.) SUMMARY JUDGMENT STANDARD Summary judgment is appropriate where the pleadings, discovery materials, and affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex, 477 U.S. at 322-24, 106 S.Ct. 2548. A fact is “material” if, under the governing law, it could have an effect on the outcome of the lawsuit, and the dispute is “genuine” if a rational jury could find in favor of the nonmoving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). The court must view all “evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Mathews v. Denver Newspaper Agency LLP, 649 F.3d 1199, 1204 (10th Cir.2011) (quoting Lewis v. Circuit City Stores, Inc., 500 F.3d 1140, 1146 (10th Cir.2007)). In ruling on a summary judgment motion, the court may neither make credibility determinations nor weigh the evidence. Gossett v. Oklahoma, 245 F.3d 1172, 1175 (10th Cir.2001) (quotation omitted). RETALIATION CLAIM To pursue a claim for relief under Title VII and the NMHRA, the plaintiff must first make out a prima facie case of unlawful retaliation. To establish a prima facie case, the plaintiff “must show that: (1) [he] engaged in protected activity; (2) the [defendant] took an adverse employment action against [him]; and (3) there exists a causal connection between the protected activity and the adverse action.” Annett v. Univ. of Kan., 371 F.3d 1233, 1237 (10th Cir.2004) (citations omitted). Where there is no direct evidence of retaliation, a retaliation claim is analyzed under a burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93" }, { "docid": "12300537", "title": "", "text": "an injunction directing the defendants to “return to the plaintiff all documents reflecting his arrest and detention and ordering the defendants to expunge all computer information reflecting the plaintiffs arrest and detention.” M-¶ 5. II. APPLICABLE LAW A. Summary Judgment Standard Summary judgment should be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together' with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “An issue of fact is genuine ‘if the evidence is such that a-jury could return a verdict for the nonmoving party.’ ” Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir.2002) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is material if “it ‘might affect the outcome of the suit under the governing law.’ ” Id. (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). Accordingly, the court’s task is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505. “In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party.” Flanigan v. General Elec. Co., 242 F.3d 78, 83 (2d Cir.2001); see also Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir.2003). Summary judgment is inappropriate “if there is any evidence in the record that could reasonably support a jury’s verdict for the non-moving party.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir.2002) (citing Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir.2000)). B. Qualified Immunity “When government officials abuse their offices, actions for damages may offer the only realistic avenue for vindication of constitutional guarantees. On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and" }, { "docid": "15285605", "title": "", "text": "is on the moving party to demonstrate the absence of any material factual issue genuinely in dispute. American International Group, Inc. v. London American International Corp., 664 F.2d 348, 351 (2d Cir.1981). In determining whether a genuine factual issue exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If a nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof, then summary judgment is appropriate. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. If the nonmoving party submits evidence which is “merely colorable,” legally sufficient opposition to the motion for summary judgment is not met. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. First Amendment Retaliation The Court must consider whether plaintiffs speech is entitled to First Amendment protection. Defendants argue that plaintiffs speech is not entitled to First Amendment protection and, even if it is, plaintiff cannot establish the requisite elements of his retaliation claim. A plaintiff asserting First Amendment retaliation must show by a preponderance of the evidence: 1) that the speech was constitutionally protected; 2) that he suffered an adverse employment decision; and 3) that the speech at issue was a substantial, causal or motivating factor in the decision. Morrison v. Johnson, 429 F.3d 48, 51 (2d Cir.2005). However, even if a plaintiff can establish these elements, the government may still prevail if it demonstrates that it would have taken the same adverse action in the absence of the protected speech, or that plaintiffs speech was likely to disrupt the government’s activities, and the likely disruption was sufficient to outweigh the First Amendment value of plaintiffs speech. Mandell v. The County of Suffolk, 316 F.3d 368, 383 (2d Cir.2003). The Court must first determine whether plaintiff was speaking as a citizen for First Amendment purposes pursuant to Garcetti v. Ceballos. Garcetti instructs “that when public employees make statements pursuant to their official duties, the employees are not" }, { "docid": "1402543", "title": "", "text": "defendants’ motion for summary judgment. This timely appeal followed. II. ANALYSIS A. Retaliation claim On appeal, Brown argues that the district court erred in granting summary judgment to the defendants on his retaliation claim. A district court’s grant of summary judgment is reviewed de novo. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir.2000). Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering such a motion, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). This court has held that retaliation against a prisoner based upon his exercise of a constitutional right violates the Constitution. Thaddeus-X, 175 F.3d at 394 (holding that genuine issues of material fact precluded summary judgment on a retaliation claim involving a prisoner’s right of access to the courts). A retaliation claim has three elements: (1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two — that is, the adverse action was motivated at least in part by the plaintiffs protected conduct. Id. at 394. If the prisoner is able to prove that his exercise of the protected right was a substantial or motivating factor in the defendant’s alleged retaliatory conduct, the burden shifts to the defendant to show that the same action would have been taken even absent the protected conduct. Id. at 399. The defendants argue that the Thaddeus-X standard does not apply to this" }, { "docid": "18985226", "title": "", "text": "show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (quoting Fed.R.Civ.P. 56(c)) (internal quotation marks omitted). Issues of non-material fact, however, will not prevent a court from awarding a party summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“[T]he mere existence of some alleged factual dispute between parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”) (emphasis in original). Facts are material if they “might affect the outcome of the suit under the governing law.” Overton v. New York State Div. of Military and Naval Affairs, 373 F.3d 83, 89 (2d Cir.2004) (quoting Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505) (internal quotation marks omitted). On a motion for summary judgment the movant bears an initial burden to come forward with evidence that satisfies “each material element of his claim or defense, demonstrating that he is entitled to relief.” Isaac v. City of New York, 701 F.Supp.2d 477, 484 (S.D.N.Y.2010). Once the movant has made this initial showing, the nonmov-ing party must provide evidence of a genuine issue of fact in order to successfully oppose the motion. Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010) (citing Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson, 477 U.S. at 248, 106 S.Ct. 2505, and all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Hotel Emps. & Rest. Emps. Union, Local 100 v. City of N.Y. Dep’t of Parks and Recreation, 311 F.3d 534, 543 (2d Cir.2002). If the nonmoving party is unable to provide evidence of" }, { "docid": "19536660", "title": "", "text": "District of Illinois. Plaintiff brought claims against IC under both the ADEA and Title VII, alleging unlawful discrimination on the basis of age and national origin, respectively. Additionally, plaintiff claimed he was subjected to unlawful retaliation for reporting his complaints about Clermont. The district court granted summary judgment to IC on April 12, 2017. This appeal followed. II. Discussion We review a district court's grant of summary judgment de novo. C.G. Schmidt, Inc. v. Permasteelisa N. Am. , 825 F.3d 801, 805 (7th Cir. 2016). Summary judgment is appropriate if the movant \"shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.\" Spurling v. C & M Fine Pack, Inc. , 739 F.3d 1055, 1060 (7th Cir. 2014) (quoting Fed. R. Civ. P. 56(a) ). A genuine dispute of material fact exists \"if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.\" Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We \"consider all of the evidence in the record in the light most favorable to the non-moving party, and we draw all reasonable inferences from that evidence in favor of the party opposing summary judgment.\" Feliberty v. Kemper Corp. , 98 F.3d 274, 276-77 (7th Cir. 1996). A. Plaintiff's Retaliation Claim To survive summary judgment on a timely retaliation claim, plaintiff must offer evidence of: \"(1) a statutorily protected activity; (2) a materially adverse action taken by the employer; and (3) a causal connection between the two.\" Baines v. Walgreen Co. , 863 F.3d 656, 661 (7th Cir. 2017) (quoting Humphries v. CBOCS W., Inc. , 474 F.3d 387, 404 (7th Cir. 2007) ). Here, plaintiff did not engage in any statutorily-protected activity. Statutorily-protected activity \"requires more than simply a complaint about some situation at work, no matter how valid the complaint might be.\" Cole v. Bd. of Trs. of N. Ill. Univ. , 838 F.3d 888, 901 (7th Cir. 2016). Rather, \"the complaint must indicate [that] discrimination occurred because" }, { "docid": "9036004", "title": "", "text": "entirety and further concluded that qualified immunity shielded them from liability. II. DISCUSSION We review the district court's grant of summary judgment de novo and construe all facts and reasonable inferences in favor of Daugherty, the nonmoving party. Wilson v. Adams, 901 F.3d 816, 820 (7th Cir. 2018). Under Rule 56, summary judgment is appropriate \"if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.\" FED. R. CIV. P. 56(a). A genuine dispute as to any material fact exists if \"the evidence is such that a reasonable jury could return a verdict for the nonmoving party.\" Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A. We first consider Daugherty's argument that the district court erred in granting summary judgment for Harrington and Page on his claim that they retaliated against him because he complained about the conditions of his confinement in violation of the First Amendment. To prevail on a First Amendment retaliation claim, Daugherty must show: (1) he engaged in protected activity; (2) he suffered a deprivation likely to deter future protected activity; and (3) his protected activity was a motivating factor in the defendants' decision to retaliate. Perez v. Fenoglio , 792 F.3d 768, 783 (7th Cir. 2015). Under the first element, the filing of a prison grievance is a constitutionally protected activity supporting a First Amendment retaliation claim, see id ., as are oral complaints about prison conditions. Pearson v. Welborn , 471 F.3d 732, 740 (7th Cir. 2006). On appeal, Page concedes that the district court erred in granting summary judgment in his favor as to Daugherty's First Amendment retaliation claim. We accept this concession and limit our discussion to whether Harrington retaliated against Daugherty for the protected activity of filing prison grievances and making oral complaints concerning the conditions of his confinement. Daugherty bases his retaliation claim on the May 2012 disciplinary ticket, which led to his segregation. Harrington's only involvement with the disciplinary ticket was Page's re-quest for" }, { "docid": "22077853", "title": "", "text": "district court’s order granting summary judgment de novo. Rannals v. Diamond Jo Casino, 265 F.3d 442, 447 (6th Cir.2001), cert. denied, 534 U.S. 1132, 122 S.Ct. 1074, 151 L.Ed.2d 976 (2002). In accordance with Federal Rule of Civil Procedure 56(c), a grant of summary judgment is affirmed “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A dispute over a material fact cannot be “genuine” unless a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Initially, the moving party has the burden of proving that no genuine issue as to any material fact exists and that it is entitled to a judgment as a matter of law. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477, 1479 (6th Cir.1989) (noting “that not every issue of fact or conflicting inference presents a genuine issue of material fact which requires the denial of a summary judgment motion”). To meet this burden, the moving party may rely on any of the evidentiary sources listed in Rule 56(c) or on the failure of the non-moving party to produce “more than a mere scintilla of evidence” which would create a genuine dispute for the jury. Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir.2001); see also Street, 886 F.2d at 1477 (“The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient.” (quotation omitted)). In reviewing the district court’s decision to grant summary judgment, we must view all evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). B. First Amendment Retaliation Analysis Plaintiffs claim that they were transferred in retaliation for engaging in protected speech. Because we believe a" }, { "docid": "22149549", "title": "", "text": "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); see also Bennett v. Hendrix, 423 F.3d 1247, 1249-50 (11th Cir.2005). The moving party may meet its burden to show that there are no genuine issues of material fact by demonstrating that there is a lack of evidence to support the essential elements that the non-moving party must prove at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). a. Retaliation Claim An inmate must establish three elements to prevail on a retaliation claim. Bennett, 423 F.3d at 1250. The inmate must prove that: (1) “his speech or act was constitutionally protected”; (2) “the defendant’s retaliatory conduct adversely affected the protected speech”; and (3) “there is a causal connection between the retaliatory actions and the adverse effect on speech.” Id. To establish causation, the plaintiff must show that the defendant was “subjectively motivated to discipline” the plaintiff for exercising his First Amendment rights. Smith v. Mosley, 532 F.3d 1270, 1278 (11th Cir.2008). “[O]nce the plaintiff ... establishes] that his protected conduct was a motivating factor behind any harm, the burden of production shifts to the defendant. If the defendant can show that he would have taken the same action in the absence of the protected activity, he ... prevails] on ... summary judgment.” Id. (quotation marks omitted). The district court assumed without deciding that Mo-ton had satisfied the first two elements of his retaliation claim. However, it granted summary judgment upon finding that Mo-ton failed to establish a causal relationship between his October 30 grievance and statements and Cowart’s retaliatory action. Upon review, we conclude that the district court erred in granting summary judgment in Cowart’s favor. i. Moton has shown that genuine issues of material fact remain as to the causal relationship between his grievance and the discipline Cowart imposed. The parties disagree about the significance of Moton’s use of large upper case letters and as to whether the font size and case of the text in" }, { "docid": "14450416", "title": "", "text": "purses and other bags. Id. ¶¶ 237-242. Summit also has trademarks in Nox Twilight for nail polish in Class 3, with a filing date of November 24, 2010, and a registration date of July 17, 2012, and Luna Twilight for cosmetics in Class 3, with a filing date of May 28, 2009, and a March 8, 2011 registration date. Id. ¶¶ 243-244. Summit seeks trademark protection for all of its trademarks that include the term Twilight. See Third Amended Countercl. ¶ 9. . Legal Standard for Summary Judgment Summary judgment is permissible “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving'party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “An issue of fact is genuine ‘if the evidence is such that a jury could return a verdict for the nonmoving party.’ ” Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir.2002) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is material when “it ‘might affect the outcome of the suit under the governing law.’ ” Id. (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. See Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir.2002). In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, it “ ‘must do more than simply show that there is some metaphysical doubt as to the material facts,’ ” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), and it “may not rely on conclusory allegations or unsubstantiated speculation.” Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir.2001) (citations and quotations omitted). Rather, the non-moving party must produce admissible evidence that" }, { "docid": "14984507", "title": "", "text": "were in retaliation for the underlying lawsuit that he filed on behalf of his daughter. He alleged that because the underlying lawsuit was speech protected under the First Amendment, the adverse employment actions taken by the defendants violated his First Amendment rights. Vereecke claimed compensatory damages for loss of income, loss of reputation, mortification, embarrassment, humiliation, degradation, and anxiety and mental anguish, and he also sought punitive damages. The defendants collectively moved for summary judgment on all claims. The district court granted the motion on July 14, 2008. Vereecke timely appealed. II. We review de novo a district court’s grant of summary judgment. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999) (en banc). Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The Court must review all the evidence, facts, and inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In order to defeat a summary judgment motion, the nonmoving party “must show sufficient evidence to create a genuine issue of material fact.” Prebilich-Holland v. Gaylord Entm’t Co., 297 F.3d 438, 442 (6th Cir.2002). The nonmoving party must present evidence sufficient to permit a reasonable jury to find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Entry of summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). III. A. In order to establish a prima facie claim of First Amendment retaliation, Vereecke must demonstrate that: (1) he engaged in constitutionally protected speech or conduct; (2) an adverse" } ]

[ { "docid": "12090661", "title": "", "text": "For the foregoing reasons, we AFFIRM the judgment. . We regard Guidelines commentary that interprets or explains a guideline as authoritative unless it violates the Constitution or a statute or is inconsistent with, or a plainly erroneous reading of, that guideline. United States v. Gonzalez-Ramirez, 477 F.3d 310, 312 n. 10 (5th Cir.2007) (quoting Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993)). . The South Carolina stalking statute does not contain as an element the use, attempted use, or threatened use of force; while this element is clearly implicit in some forms of stalking, the use, attempted use or threatened use of force are not required in order to violate the law. In any case, the parties do not argue this point. . ROA 46. . We have previously applied our holdings under the residual clause of the ACCA to analyze the definition of crimes of violence under § 4B1.2, and vice versa. See, e.g., United States v. Hawley, 516 F.3d 264, 271-72 (5th Cir.2008); United States v. Velasco, 465 F.3d 633, 641 n. 9 (5th Cir.2006); Montgomery, 402 F.3d at 488 n. 28 (5th Cir.2005). Additionally, other Circuit courts have used Begay in defining crimes of violence under the Guidelines. See, e.g. United States v. Bartee, 529 F.3d 357 (6th Cir.2008); United States v. Williams, 537 F.3d 969 (8th Cir.2008); United States v. Gray, 535 F.3d 128 (2nd Cir.2008). . The treatment of stalking under the categorical approach in other cases is illustrative, though not necessarily persuasive because the state statutes at issue define stalking differently from South Carolina. In United States v. Insaulgarat, 378 F.3d 456 (5th Cir.2004), this Court held that a conviction under Florida’s Aggravated Stalking statute is not a crime of violence. However, the statute in that case could be violated by mere harassing conduct. Id. at 470-71. In an unpublished case, United States v. Espinoza, 67 Fed.Appx. 252 (5th Cir.2003), this Court also held that a conviction under Colorado’s stalking statute was not a crime of violence under USSG § 2L1.2. However, the Colorado statute could similarly" } ]

[ { "docid": "22435536", "title": "", "text": "§ 4B1.2, comment. (n.l). We further find that attempted robbery under Florida law satisfies § 4B1.2(a)’s residual clause as an offense that “presents a serious potential risk of physical injury to another.” When considering the residual clause, we apply a three-step framework and ask: First, what is the relevant category of crime, determined by looking to how the crime is ordinarily committed? Second, does that crime pose a “serious potential risk of physical injury” that is similar in degree to the risks posed by the enumerated crimes? Third, is that crime similar in kind to the enumerated crimes? United States v. Harrison, 558 F.3d 1280, 1287 (11th Cir.2009) (interpreting the ACCA); see also Harris, 586 F.3d at 1287 (applying Harrison’s analysis to the residual clause of the career offender enhancement). Again, we answer these questions applying the categorical approach to § 812.13(1) described above. Harris, 586 F.3d at 1288. Interpreting § 812.13(l)’s “putting in fear” language as we must, the relevant category of crime includes those offenses that involve the use or threatened use of force or violence. As such, this form of robbery clearly presents a “serious potential risk of physical injury.” See United States v. Wilkerson, 286 F.3d 1324, 1325 (11th Cir.2002) (holding that a conviction under § 812.13(1) is a “violent felony” under the ACCA); cf. United States v. Whitson, 597 F.3d 1218, 1222 (11th Cir.2010) (per curiam) (“standing] by Wilkerson as far as it concerns serious risk of physical injury,” but declining, after Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), to hold that a non-overt act conspiracy to commit robbery is a “crime of violence” as defined by U.S.S.G. § 4B1.2(a)). And the risk of physical injury posed by a violation of Fla. Stat. § 812.13(1) is comparable in degree to the enumerated crimes of burglary and extortion, both of which by nature involve a heightened danger of violent confrontation (even if such confrontation is not the usual course of the offense). See, e.g., James v. United States, 550 U.S. 192, 203-04, 127 S.Ct. 1586, 1594-95, 167 L.Ed.2d 532" }, { "docid": "7428670", "title": "", "text": "Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). . James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). . Begay, 553 U.S. at 148, 128 S.Ct. 1581. . Id. at 142, 128 S.Ct. 1581 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). . Id. at 143, 128 S.Ct. 1581 (discussing 18 U.S.C. § 924(e)(2)(B)). . 18 U.S.C. § 924(e)(2)(B)(ii). . Begay, 553 U.S. at 144-45, 128 S.Ct. 1581 (quoting United States v. Begay, 470 F.3d 964, 980 (10th Cir.2006) (McConnell, J., dissenting)). . Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 692, 172 L.Ed.2d 484 (2009). . Id. . See Begay, 553 U.S. at 154, 128 S.Ct. 1581 (Scalia, J., concurring in the judgment) (\"For some crimes, the severity of the risk will be obvious. Crimes like ... conspiracy to commit a violent crime ... certainly pose a more serious risk of physical injury to others than burglary.” (internal citations omitted)). . Id. at 145, 128 S.Ct. 1581 (majority opinion). . Id. at 146, 128 S.Ct. 1581. . Id. . Chambers, 129 S.Ct. at 692 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). . See James v. United States, 550 U.S. 192, 206, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (quoting U.S. Sentencing Guidelines Manual § 4B 1.2(a)(2) (2006)). . See 18 U.S.C. § 924(e). . United States v. Vickers, 540 F.3d 356, 365-66 (5th Cir.2008). . James, 550 U.S. at 208, 127 S.Ct. 1586. . United States v. White, 571 F.3d 365, 370-72 (4th Cir.2009), cert. denied, —U.S. —, 130 S.Ct. 1140, 175 L.Ed.2d 978 (2010). . Id. at 371. . Id. . Id. at 372; see also United States v. Chimurenga, 760 F.2d 400, 403-04 (2d Cir.1985) (holding that conspiracy to commit armed robbery was a crime of violence within the meaning of the residual clause of 18 U.S.C. § 3156(a)(4)). . United States v. King, 979 F.2d 801, 804 (10th Cir.1992). . James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). . Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490" }, { "docid": "10788083", "title": "", "text": "its decisions mean. But the government’s inability to give a reasoned basis for that position is telling, and the better view, I believe, is that a juvenile court “conviction” is not usable for enhancing a federal sentence. As for the defendant’s second supposed “violent felony” — “aggravated fleeing”— the other circuits are split over its proper classification. Compare United States v. Wise, 597 F.3d 1141, 1148 (10th Cir.2010); United States v. LaCasse, 567 F.3d 763, 765-67 (6th Cir.2009); United States v. Harrimon, 568 F.3d 531, 534-37 (5th Cir. 2009) ; see also United States v. Hudson, 577 F.3d 883 (8th Cir.2009), holding that it is a violent felony, with United States v. Harrison, 558 F.3d 1280, 1290-96 (11th Cir.2009), and United States v. Tyler, 580 F.3d 722, 724-26 (8th Cir.2009), holding that it is not; see also United States v. Rivers, 595 F.3d 558, 564-65 (4th Cir. 2010) . (Tyler, which did not cite Hudson, created a split within the Eighth Circuit.) Wise, Hudson, and Tyler are applications of section 4B1.2 of the federal sentencing guidelines rather than of the Armed Career Criminal Act, but “crime of violence” in the guidelines section is interpreted identically to “violent felony” in the Act. United States v. Templeton, 543 F.3d 378, 380 (7th Cir.2008). Our court has lined up with the courts that deem “aggravated fleeing” a “violent felony” within the meaning of the Armed Career Criminal Act. United States v. Sykes, 598 F.3d 334, 335 (7th Cir.2010); United States v. Dismuke, 593 F.3d 582, 590-96 (7th Cir.2010); United States v. Spells, 537 F.3d 743, 747-53 (7th Cir.2008). These decisions are questionable in light of Chambers v. United States, — U.S. -, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), where the Supreme Court held that the form of “escape” that consists merely of failing to report to prison on schedule to begin serving one’s sentence is not a “violent felony.” Neither is a walkaway escape. See, e.g., United States v. Hart, 578 F.3d 674, 680-81 (7th Cir.2009); United States v. Templeton, supra, 543 F.3d at 383; United States v. Lee, 586 F.3d 859," }, { "docid": "2380061", "title": "", "text": "(9th Cir.2008), and we recently held that Begay’s analysis applies to section 4B1.2, United States v. Coronado, 603 F.3d 706, 708-10 (9th Cir.2010). Our sister circuits have also followed Begay in analyzing whether a prior state offense is a \"crime of violence” under Guidelines section 4B 1.2(a)(2). United States v. Jarmon, 596 F.3d 228, 231 n. * (4th Cir. 2010); United States v. Johnson, 587 F.3d 203, 207-08 & n. 5 (3d Cir.2009); United States v. Hart, 578 F.3d 674, 677 & n. 3 (7th Cir.2009); United States v. Wilson, 562 F.3d 965, 967-68 (8th Cir.2009); United States v. Baker, 559 F.3d 443, 451-52 & n. 8 (6th Cir.2009); United States v. Rooks, 556 F.3d 1145, 1150 (10th Cir.2009); United States v. Almenas, 553 F.3d 27, 34 & n. 7 (1st Cir. 2009); United States v. Gray, 535 F.3d 128, 130 (2d Cir.2008); United States v. Archer, 531 F.3d 1347, 1350 n. 1 (11th Cir.2008). The Supreme Court, too, has drawn from the Guidelines’ definition of a \"crime of violence” in interpreting the ACCA's definition of “violent felony.” See James v. United States, 550 U.S. 192, 206, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). . There are four ways to commit assault under subsection (1)(b). A person might \"[¡Intentionally ... cause[ ] physical injury to another by means of a deadly ... weapon”; \"[¡Intentionally ... cause[ ] physical injury to another by means of a ... dangerous weapon”; \"knowingly cause[] physical injury to another by means of a deadly ... weapon”; or \"knowingly cause[] physical injury to another by means of a ... dangerous weapon.” Or.Rev.Stat. § 163.175(1)(b). Crews does not dispute that to \"[i]ntentionally ... cause[] physical injury to another by means of a deadly or dangerous weapon,” id. (emphasis added), involves purposeful, violent, and aggressive conduct and thus categorically qualifies as a crime of violence. Rather, Crews focuses on subsection (l)(b)'s less culpable mens rea of \"knowingly,” because \" 'our categorical inquiry need focus only on the conduct falling at the least egregious end of the state statute’s range of conduct.' ” United States v. Baza-Martinez, 464 F.3d" }, { "docid": "3861366", "title": "", "text": ". U.S.S.G. § 4B1.2, cmt. 1 (2009). . United States v. Gonzalez-Chavez, 432 F.3d 334, 337-38 (5th Cir.2005). . See, e.g., United States v. Jackson, 113 F.3d 249, 252 (D.C.Cir.1997) (government does not contend shoplifting is a violent felony); United States v. Parson, 955 F.2d 858, 865 n. 8 (3d Cir.1992). . 554 F.3d 604, 607 (5th Cir.2009), cert. denied, - U.S. -, 130 S.Ct. 56, 175 L.Ed.2d 45 (2009). . See James, 550 U.S. at 208, 127 S.Ct. 1586 (\"[T]he proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.”). . 553 U.S. at 137, 128 S.Ct. 1581. . Id. at 142, 128 S.Ct. 1581. . United States v. Charles, 301 F.3d 309, 313-14 (5th Cir.2002) (en banc). . See Begay, 553 U.S. at 142-43, 128 S.Ct. 1581. . Chambers v. United States, - U.S. -, 129 S.Ct. 687, 692, 172 L.Ed.2d 484 (2009) (citation omitted). . 18 U.S.C. § 922(u) (2002). . Cf. United States v. DeSantiago-Gonzalez, 207 F.3d 261, 263 (5th Cir.2000) (holding that Driving While Intoxicated is a crime of violence for the purposes of U.S.S.G. § 2L1.2(b)(1)(B)). . Begay, 553 U.S. at 143, 128 S.Ct. 1581. . Id. at 142, 128 S.Ct. 1581." }, { "docid": "11177877", "title": "", "text": "in the ordinary case, to “involve[ ] conduct- that presents a serious potential risk of physical injury to another,” U.S.S.G. § 4B1.2(a)(2), regardless of Spencer’s specific conduct in violating § 708-820(l)(a). But the Supreme Court’s precedent dictates that the analysis is not so straightforward. The Court has interpreted the nearly identical residual clause of the definition of “violent felony” in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), four times in recent years. See Sykes v. United States, — U.S.-, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (holding that knowing or intentional flight from law enforcement by vehicle under Indiana law is a violent felony under ACCA); Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (holding that failure to report to prison under Illinois law is not a violent felony under ACCA); Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (holding that driving under the influence of alcohol under New Mexico law is not a violent felony under ACCA); James, 550 U.S. at 209, 127 S.Ct. 1586 (holding that attempted burglary under Florida law is a violent felony under ACCA). These opinions make clear that interpretation of ACCA’s residual clause must be guided not only by the language of the residual clause itself, but also by the offenses enumerated in ACCA’s “violent felony” definition just before the residual clause. See Sykes, 131 S.Ct. at 2273; Chambers, 555 U.S. at. 127-29, 129 S.Ct. 687; Begay, 553 U.S. at. 142-44, 128 S.Ct. 1581; James, 550 U.S. at 203, 127 S.Ct. 1586. Since we make “no distinction between the terms ‘violent felony’ [as defined in the ACCA] and ‘crime of violence’ [as defined in § 4B1.2(a)(2) of the Sentencing Guidelines] for purposes of interpreting the residual clausefs],” Crews, 621 F.3d at 852 n. 4; see also id. at 855-56, the enumerated offenses that precede the residual clause in the “crime of violence” definition in the Guidelines must guide our interpretation of the residual clause in § 4B1.2(a)(2) as well. We set out the framework for analyzing whether a conviction" }, { "docid": "3861365", "title": "", "text": "(1990). . Id. . United States v. Hughes, 602 F.3d 669, 674 (5th Cir.2010). . United States v. Ortega-Gonzaga, 490 F.3d 393, 395 (5th Cir.2007). The Supreme Court defined burglary for the purposes of the ACCA similarly: [A] person has been convicted of burglary for the purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime. Taylor, 495 U.S. at 599, 110 S.Ct. 2143. . United States v. Santiesteban-Hernandez, 469 F.3d 376, 378-79 (5th Cir.2006). . Id. at 379. . Id. . 18 U.S.C. § 924(e)(2)(B)(ii) (2002). . Begay v. United States, 553 U.S. 137, 144-45, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). . Id. at 147, 128 S.Ct. 1581. . 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607. . James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). . Hughes, 602 F.3d at 674. . U.S.S.G. § 4B1.2, cmt. 1 (2009). . United States v. Gonzalez-Chavez, 432 F.3d 334, 337-38 (5th Cir.2005). . See, e.g., United States v. Jackson, 113 F.3d 249, 252 (D.C.Cir.1997) (government does not contend shoplifting is a violent felony); United States v. Parson, 955 F.2d 858, 865 n. 8 (3d Cir.1992). . 554 F.3d 604, 607 (5th Cir.2009), cert. denied, - U.S. -, 130 S.Ct. 56, 175 L.Ed.2d 45 (2009). . See James, 550 U.S. at 208, 127 S.Ct. 1586 (\"[T]he proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.”). . 553 U.S. at 137, 128 S.Ct. 1581. . Id. at 142, 128 S.Ct. 1581. . United States v. Charles, 301 F.3d 309, 313-14 (5th Cir.2002) (en banc). . See Begay, 553 U.S. at 142-43, 128 S.Ct. 1581. . Chambers v. United States, - U.S. -, 129 S.Ct. 687, 692, 172 L.Ed.2d 484 (2009) (citation omitted). . 18 U.S.C. § 922(u) (2002). . Cf. United States v. DeSantiago-Gonzalez," }, { "docid": "23060656", "title": "", "text": "risk of violence akin to the listed crimes? See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1594-98, 167 L.Ed.2d 532 (2007). Two, does the crime involve the same kind of “purposeful, violent, and aggressive conduct” as the listed crimes? Begay v. United States, — U.S. —, 128 S.Ct. 1581, 1586, 170 L.Ed.2d 490 (2008); see also Chambers v. United States, — U.S. —, 129 S.Ct. 687, 692, 172 L.Ed.2d 484 (2009). That an offense presents a risk of physical injury to others, as Begay demonstrates, does not by itself suffice to show that it is a crime of violence. Otherwise, drunk driving would be a crime of violence, and Begay makes clear that it is not. Begay, 128 S.Ct. at 1583; see United States v. Templeton, 543 F.3d 378, 383 (7th Cir.2008). In answering these questions, we treat a “crime of violence” under § 4Bl.l(a) of the guidelines the same as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1); see United States v. Houston, 187 F.3d 593, 594-95 (6th Cir.1999), because both laws share essentially the same definitions (if not the same titles), compare U.S.S.G. § 4B2.1(a) with 18 U.S.C. § 924(e)(2)(B). And in determining the nature of a defen dant’s prior conviction, we apply a “categorical” approach, meaning that we look at the statutory definition of the crime of conviction, not the facts underlying that conviction, to determine the nature of the crime. Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Save, that is, in one instance: If it is possible to violate a criminal law in a way that amounts to a crime of violence and in a way that does not, we may look at the indictment, guilty plea and similar documents to see if they “necessarily” establish the nature of the prior offense. Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Kentucky criminalizes several types of “escape.” Ford was spared the first one— first-degree escape — which covers “escapes from custody or a detention" }, { "docid": "7428671", "title": "", "text": "S.Ct. 1581. . Id. . Chambers, 129 S.Ct. at 692 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). . See James v. United States, 550 U.S. 192, 206, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (quoting U.S. Sentencing Guidelines Manual § 4B 1.2(a)(2) (2006)). . See 18 U.S.C. § 924(e). . United States v. Vickers, 540 F.3d 356, 365-66 (5th Cir.2008). . James, 550 U.S. at 208, 127 S.Ct. 1586. . United States v. White, 571 F.3d 365, 370-72 (4th Cir.2009), cert. denied, —U.S. —, 130 S.Ct. 1140, 175 L.Ed.2d 978 (2010). . Id. at 371. . Id. . Id. at 372; see also United States v. Chimurenga, 760 F.2d 400, 403-04 (2d Cir.1985) (holding that conspiracy to commit armed robbery was a crime of violence within the meaning of the residual clause of 18 U.S.C. § 3156(a)(4)). . United States v. King, 979 F.2d 801, 804 (10th Cir.1992). . James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). . Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). . Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). . King, 979 F.2d at 804. . Id. (citing United States v. Permenter, 969 F.2d 911 (10th Cir.1992); United States v. Strahl, 958 F.2d 980 (10th Cir.1992)). . United States v. Whitson, 597 F.3d 1218, 1220, 1223 (11th Cir.2010) (per curiam). . Id. at 1221. . Id. at 1222. . Id. at 1223 (citing Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)). . See United States v. King, 979 F.2d 801 (10th Cir.1992). . See 597 F.3d at 1222, 1223. . United States v. Gonzalez-Terrazas, 529 F.3d 293, 296 (5th Cir.2008). . Id. (citations omitted). . 550 U.S. 192, 229-30, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (Scalia, J., dissenting). . Id. at 210 n. 6, 127 S.Ct. 1586 (majority opinion). . 544 U.S. 13, 26-28, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (Thomas, J., concurring in part and concurring in the judgment). . 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435" }, { "docid": "23098458", "title": "", "text": "conviction satisfies the threshold requirement of ACCA. Young’s conviction, however, does not have as an element the use, attempted use, or threatened use of force, nor is it a type of burglary, arson, extortion, or an offense involving the use of explosives. Thus, the issue before the Court is whether Young’s conviction falls under ACCA’s “residual clause” — that is, whether it “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)®. An offense falls within ACCA’s residual clause if it (1) poses a serious potential risk of physical injury to others; and (2) involves the same kind of purposeful, violent, and aggressive conduct as the enumerated offenses of burglary, arson, extortion, or offenses involving the use of explosives. Begay v. United States, — U.S. -, 128 S.Ct. 1581, 1586, 170 L.Ed.2d 490 (2008); United States v. Ford, 560 F.3d 420, 421 (6th Cir.2009). In conducting that inquiry, we are to use the “categorical approach,” meaning that we examine only “whether the elements of the offense are of the type that would justify its inclusion within the residual provision.” James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (emphasis in original). Further, we only consider the behavior underlying the offense as it is generally or ordinarily committed, Chambers v. United States, — U.S.-, 129 S.Ct. 687, 690, 172 L.Ed.2d 484 (2009); James, 550 U.S. at 208, 127 S.Ct. 1586, “not in terms of how an individual offender might have committed [the offense] on a particular occasion,” Begay, 128 S.Ct. at 1584. Under the categorical approach of James, Begay, and Chambers, we hold that Young’s conviction qualifies as a violent felony under ACCA. Young’s conviction clearly involved purposeful conduct, as Michigan’s fleeing-and-eluding statute applies only to those “who willfully fail[ ] to obey [an officer’s] direction.” Mich. Comp. Laws § 257.602a(l) (1996). See United States v. Roseboro, 551 F.3d 226, 236 & n. 5 (4th Cir.2009) (noting that Michigan’s fleeing-and-eluding statute requires the violation to be purposeful); compare United States v. Spells, 537 F.3d 743, 749 (7th Cir.2008)" }, { "docid": "7428680", "title": "", "text": "curiam) (unpublished) (citing United States v. Muñoz, 150 F.3d 401, 419 (5th Cir.1998)). . See James, 550 U.S. at 200-01, 127 S.Ct. 1586 (noting that the original version of the ACCA provided enhanced penalties based on two prior convictions for “any robbery or burglary offense\" and that the 1986 amendment to the ACCA, which replaced that language with the Residual Clause, was \"for the purpose of expanding the range of predicate offenses” (citations and internal quotation marks omitted)). . See Tex. Penal Code § 15.02(d) (providing that a conspiracy offense is punishable as a felony that \"is one category lower than the most serious felony that is the object of the conspiracy”); 15A C.J.S. Conspiracy § 98 (\"Although criminalization of conspiracy punishes the inchoate offense by prosecuting the agreement itself, separating and stigmatizing jointly planned criminal activity prior to its completion, the crime of conspiracy is directed at the intended result of that agreement.” (footnote omitted)). . James, 550 U.S. at 203, 127 S.Ct. 1586. . Compare Begay, 553 U.S. at 145, 128 S.Ct. 1581 (defining extortion as \" ‘purposely’ obtaining property of another through threat of, e.g., inflicting ‘bodily injury’ ” (quoting Model Penal Code § 223.4 (1985))), with Tex. Penal Code § 29.02(a)(2) (defining robbery as \"in tentionally or knowingly threatenfing] or placing] another in fear of imminent bodily injury or death” while \"in the course of committing theft ... and with intent to obtain or maintain control of the property”). . United States v. Mohr, 554 F.3d 604, 609 n. 4 (5th Cir.) (collecting cases), cert. denied, — U.S. —, 130 S.Ct. 56, 175 L.Ed.2d 45 (2009). . James, 550 U.S. at 206, 127 S.Ct. 1586 (quoting United States v. Doe, 960 F.2d 221, 225 (1st Cir.1992) (Breyer, CJ.)). . U.S. Sentencing Guidelines Manual § 4B1.2 cmt. n.l (2010). . United States v. Hernandez-Galvan, 632 F.3d 192, 196 (5th Cir.2011) (quoting United States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir.2008)). . “[A]bsent plain indication to the contrary, federal laws are not to be construed so that their application is dependent on state law,” Taylor, 495 U.S." }, { "docid": "22435537", "title": "", "text": "force or violence. As such, this form of robbery clearly presents a “serious potential risk of physical injury.” See United States v. Wilkerson, 286 F.3d 1324, 1325 (11th Cir.2002) (holding that a conviction under § 812.13(1) is a “violent felony” under the ACCA); cf. United States v. Whitson, 597 F.3d 1218, 1222 (11th Cir.2010) (per curiam) (“standing] by Wilkerson as far as it concerns serious risk of physical injury,” but declining, after Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), to hold that a non-overt act conspiracy to commit robbery is a “crime of violence” as defined by U.S.S.G. § 4B1.2(a)). And the risk of physical injury posed by a violation of Fla. Stat. § 812.13(1) is comparable in degree to the enumerated crimes of burglary and extortion, both of which by nature involve a heightened danger of violent confrontation (even if such confrontation is not the usual course of the offense). See, e.g., James v. United States, 550 U.S. 192, 203-04, 127 S.Ct. 1586, 1594-95, 167 L.Ed.2d 532 (2007) (reasoning that the main risk of burglary is “the possibility of a face-to-face confrontation between the burglar and a third-party — whether an occupant, a police officer, or a bystander — who comes to investigate”); United States v. Velazquez-Overa, 100 F.3d 418, 422 (5th Cir.1996) (“[B]urglary, with its tendency to cause alarm and to provoke physical confrontation ....”). Attempted robbery is also similar in degree and kind to the offenses enumerated in the residual clause insofar as it involves purposeful, violent, and aggressive conduct. See Begay, 553 U.S. at 144-45, 128 5. Ct. at 1586 (holding that the ACCA’s residual clause is only met where the prior offense of conviction involves a purposeful, violent, and aggressive act and providing definition guidance as to those terms). Robbery, as we have described it, is purposeful conduct because it requires a deliberate undertaking to deprive another of money or property by use of force or violence or a threat of force or violence. See id. at 145, 128 S.Ct. at 1586. It is also an aggressive and" }, { "docid": "20042144", "title": "", "text": "WL 4105220 at *2. . 990 F.2d 469 (9th Cir.1993). . Mitchell, 624 F.3d at 1026-27, 2010 WL 4105220 at *2. . 577 F.3d 515 (3d Cir.2009). . Post at 227 (quoting Polk, 577 F.3d at 519) (emphasis omitted). . James v. United States, 550 U.S. 192, 203, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). . Post at 227-28 (quoting United States v. Templeton, 543 F.3d 378, 383-84 (7th Cir.2008) (holding that some escapes from prison are crimes of violence while others are not)). . See, e.g., post at 231 (\"And a simple, makeshift club does not necessarily serve only aggressive and violent purposes. Marquez could have possessed the weapon for the purpose of deterring others from attacking him.”). DENNIS, Circuit Judge, dissenting: The majority erroneously concludes that the New Mexico offense of possession by a prisoner of a deadly weapon — here, a cudgel made of a dried paper magazine — N.M. Stat. Ann. § 30-22-16, is a “crime of violence” under the residual clause of § 4B1.2 of the Sentencing Guidelines, although the state statute criminalizes such possession even if the inmate never uses nor intends to use the weapon to harm or threaten another. In Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), the Supreme Court held that a “violent felony” under the nearly identical provision of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), must involve “purposeful, violent, and aggressive conduct.” The majority in the instant case mistakenly classifies the New Mexico crime at issue as a “crime of violence” on the theory that the “purposeful possession” of a deadly weapon in prison creates a “potential for violence.” This conclusion ignores the teaching of Begay, however, which requires a crime to be “violent and aggressive” as well as “purposeful” in order to fit the category of a violent felony or crime of violence. Because the crime at issue here is not “violent” or “aggressive,” the majority’s holding conflicts with the Guidelines’ intent, as clearly indicated by Begay. Accordingly, I respectfully dissent. I A Begay held that to satisfy" }, { "docid": "2045170", "title": "", "text": "849, 852 n. 4 (9th Cir.2010); United States v. Melton, 344 F.3d 1021, 1027 (9th Cir.2003). In United States v. Park, 649 F.3d 1175 (9th Cir.2011), we established a framework for analyzing whether a conviction under state law is a conviction for a crime of violence. “First, the ‘conduct encompassed by the elements of the offense, in the ordinary case,’ must ‘present[ ] a serious potential risk of physical injury to another.’ ” Id. at 1177-78 (alteration in original) (quoting James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)). “Second, the state offense must be ‘roughly similar, in kind as well as in degree of risk posed’ to those offenses enumerated at the beginning of the residual clause — burglary of a dwelling, arson, extortion, and crimes involving explosives.” Id. at 1178 (quoting Begay v. United States, 553 U.S. 137, 143, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)). As we recently observed: The inquiry under Park’s first prong is straightforward. But the second requirement — whether the state offense is “ ‘roughly similar, in kind as well as in degree of risk posed’ to those offenses enumerated at the beginning of the residual clause” — is more complicated, and must be addressed in light of the Supreme Court’s quartet of ACCA cases. Spencer, 724 F.3d at 1138 (internal citation omitted) (quoting Park, 649 F.3d at 1178). In James, the Supreme Court held that the second requirement should focus on whether the risk posed by the state offense “is comparable to that posed by its closest analog among the enumerated offenses.” James, 550 U.S. at 203, 127 S.Ct. 1586. In Begay, however, the Court concluded that a state conviction for driving under the influence was not categorically a violent felony under the ACCA because it did not “involve purposeful, violent, and aggressive conduct.” Begay, 553 U.S. at 144-45, 128 S.Ct. 1581 (internal quotation marks omitted); see also Chambers v. United States, 555 U.S. 122, 128, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (applying Begay ’s “purposeful, violent, and aggressive conduct” formula). In its most recent" }, { "docid": "20042139", "title": "", "text": "harm,” and that \"[w]e agree with the federal courts that 'the keystone of the analysis is that the defendant must have no alternative — either before or during the event — to avoid violating the law.’ \" (citations omitted)). . State v. Gonzalez, 137 N.M. 107, 107 P.3d 547, 552 (N.M.Ct.App.2005). . Id. . N.M. Rules Ann., Crim. UJI 14-130. . Gonzalez, 107 P.3d at 552 (citing State v. Wolfe, 288 Or. 521, 605 P.2d 1185, 1188 (Or. 1980)). . Begay v. United States, 553 U.S. 137, 145-48, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). . Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 691-92, 172 L.Ed.2d 484 (2009). . See Begay, 553 U.S. at 146-47, 128 S.Ct. 1581. . Id. (describing the strict liability offenses identified as \"dangerous”). . Id. at 143, 128 S.Ct. 1581. . Id. at 148, 128 S.Ct. 1581. . Id. at 144-45, 128 S.Ct. 1581 (citation omitted). . Id. at 145, 128 S.Ct. 1581 . Id. 146, 128 S.Ct. 1581. . See United States v. Robles-Rodriguez, 204 Fed.Appx. 504, 506-07 (5th Cir.2006) (unpublished) (per curiam) (noting that \"an inmate's possession, while in prison, of an instrument designed and intended to be used as a weapon, carries with it the same inherent potential to ‘explode into violence’ that drove our holding in Ruiz\" that \"an escape or an attempt to escape from U.S. custody in a prison camp constitutes a crime of violence.”) (quoting United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir.1999)). . See Begay, 553 U.S. at 144-45, 128 S.Ct. 1581. . James v. United States, 550 U.S. 192, 203, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). . Begay, 553 U.S. at 146, 128 S.Ct. 1581. . Id. . Id. . U.S.S.G. § 4B1.2 cmt. n.1 (\" 'Crime of violence' does not include the offense of unlawful possession of a firearm by a felon, unless the possession was of a firearm described in 26 U.S.C. § 5845(a).”); see also Begay, 553 U.S. at 146, 128 S.Ct. 1581. . See United States v. Jennings, 195 F.3d 795, 799 (5th Cir.1999) (recognizing that" }, { "docid": "20042143", "title": "", "text": "of Begay\"). . Id. at 519. . Id. . 602 F.3d 669 (5th Cir.2010). . 18 U.S.C. § 751(a). . Hughes, 602 F.3d at 675. . Id. at 677. . United States v. Harrimon, 568 F.3d 531, 534-35 (5th Cir.), cert. denied, — U.S.-, 130 S.Ct. 1015, 175 L.Ed.2d 621 (2009). . United States v. Bryant, 312 Fed.Appx. 698, 703 (5th Cir.2009) (unpublished) (per curiam). . United States v. Mohr, 554 F.3d 604, 609-10 (5th Cir.), cert. denied, -U.S. -, 130 S.Ct. 56, 175 L.Ed.2d 45 (2009). . United States v. Moore, 326 Fed.Appx. 794, 794-95 (5th Cir.) (unpublished) (per curiam), cert. denied,-U.S.-, 130 S.Ct. 337, 175 L.Ed.2d 223 (2009). The commentary to U.S.S.G. § 4B1.2 specifically states that unlawfully possessing the type of firearm that Moore possessed is a crime of violence. Id. at 795. . United States v. Johnson, 286 Fed.Appx. 155, 157-58 (5th Cir.2008) (unpublished) (per curiam). . United States v. Mitchell, 624 F.3d 1023, 2010 WL 4105220 (9th Cir.2010). . Cal.Penal Code § 4574(a). . Mitchell, 624 F.3d at 1026-27, 2010 WL 4105220 at *2. . 990 F.2d 469 (9th Cir.1993). . Mitchell, 624 F.3d at 1026-27, 2010 WL 4105220 at *2. . 577 F.3d 515 (3d Cir.2009). . Post at 227 (quoting Polk, 577 F.3d at 519) (emphasis omitted). . James v. United States, 550 U.S. 192, 203, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). . Post at 227-28 (quoting United States v. Templeton, 543 F.3d 378, 383-84 (7th Cir.2008) (holding that some escapes from prison are crimes of violence while others are not)). . See, e.g., post at 231 (\"And a simple, makeshift club does not necessarily serve only aggressive and violent purposes. Marquez could have possessed the weapon for the purpose of deterring others from attacking him.”). DENNIS, Circuit Judge, dissenting: The majority erroneously concludes that the New Mexico offense of possession by a prisoner of a deadly weapon — here, a cudgel made of a dried paper magazine — N.M. Stat. Ann. § 30-22-16, is a “crime of violence” under the residual clause of § 4B1.2 of the Sentencing Guidelines, although the" }, { "docid": "7428669", "title": "", "text": "270, 275, 123 S.Ct. 819, 154 L.Ed.2d 744 (2003) (brackets omitted) (quoting Callanan v. United States, 364 U.S. 587, 593-94, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961)). . Compare United States v. White, 571 F.3d 365, 368, 373 (4th Cir.2009) (holding that conspiracy to commit robbery with a dangerous weapon in violation of North Carolina law was within the residual clause even though “the commission of an overt act is not an essential element of a North Carolina criminal conspiracy”), cert. denied, — U.S. —, 130 S.Ct 1140, 175 L.Ed.2d 978 (2010), with United States v. Whitson, 597 F.3d 1218, 1220, 1222-23 (11th Cir.2010) (per curiam) (holding that a conspiracy to commit a \" 'strong arm' robbery” was not a crime of violence within the meaning of the career offender enhancement of United States Sentencing Guidelines § 4B1.1 because an overt act was not necessary for the conviction and \"[n]o violence or aggression is associated with forming an agreement”). . Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). . Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). . James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). . Begay, 553 U.S. at 148, 128 S.Ct. 1581. . Id. at 142, 128 S.Ct. 1581 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). . Id. at 143, 128 S.Ct. 1581 (discussing 18 U.S.C. § 924(e)(2)(B)). . 18 U.S.C. § 924(e)(2)(B)(ii). . Begay, 553 U.S. at 144-45, 128 S.Ct. 1581 (quoting United States v. Begay, 470 F.3d 964, 980 (10th Cir.2006) (McConnell, J., dissenting)). . Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 692, 172 L.Ed.2d 484 (2009). . Id. . See Begay, 553 U.S. at 154, 128 S.Ct. 1581 (Scalia, J., concurring in the judgment) (\"For some crimes, the severity of the risk will be obvious. Crimes like ... conspiracy to commit a violent crime ... certainly pose a more serious risk of physical injury to others than burglary.” (internal citations omitted)). . Id. at 145, 128 S.Ct. 1581 (majority opinion). . Id. at 146, 128" }, { "docid": "20042140", "title": "", "text": "504, 506-07 (5th Cir.2006) (unpublished) (per curiam) (noting that \"an inmate's possession, while in prison, of an instrument designed and intended to be used as a weapon, carries with it the same inherent potential to ‘explode into violence’ that drove our holding in Ruiz\" that \"an escape or an attempt to escape from U.S. custody in a prison camp constitutes a crime of violence.”) (quoting United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir.1999)). . See Begay, 553 U.S. at 144-45, 128 S.Ct. 1581. . James v. United States, 550 U.S. 192, 203, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). . Begay, 553 U.S. at 146, 128 S.Ct. 1581. . Id. . Id. . U.S.S.G. § 4B1.2 cmt. n.1 (\" 'Crime of violence' does not include the offense of unlawful possession of a firearm by a felon, unless the possession was of a firearm described in 26 U.S.C. § 5845(a).”); see also Begay, 553 U.S. at 146, 128 S.Ct. 1581. . See United States v. Jennings, 195 F.3d 795, 799 (5th Cir.1999) (recognizing that the unlawful possession of the weapons listed in 26 U.S.C. § 5845(a) creates a ''virtual inevitability that such possession will result in violence”). . See United States v. Rodriguez-Jaimes, 481 F.3d 283, 287 (5th Cir.2007) (\"That fact [that the possession offense occurs in prison rather than in the outside world] creates a perpetual risk of injury and precludes any legitimate reasons that a non-incarcerated individual could have for possessing a weapon (e.g., recreation).”) (quoting United States v. Robles-Rodriguez, 204 Fed.Appx. 504, 507 (5th Cir.2006) (unpublished) (per curiam) (internal quotation marks omitted)). . U.S.S.G. § 4B1.2 cmt. n.l. . Id. . United States v. Zuniga, 553 F.3d 1330, 1332 (10th Cir.), cert. denied, - U.S. -, 130 S.Ct. 62, 175 L.Ed.2d 47 (2009). . United States v. Polk, 577 F.3d 515, 517 (3d Cir.2009). . Id. at 519 (observing that \"no doubt possession of a weapon in prison involves a high degree of risk” and recognizing it presented the \"possibility that one will confront another person with violent results”); Zuniga, 553 F.3d at 1334-35 (concluding that" }, { "docid": "23090270", "title": "", "text": "did not reach the residual clause issue, we can still decide it.” United States v. Harris, 608 F.3d 1222, 1227 (11th Cir.2010). That is true where, as here, the alternative route for affirming does not require facts that remain to be found by the district court. In James v. United States, 550 U.S. 192, 201-02, 127 S.Ct. 1586, 1593-94, 167 L.Ed.2d 532 (2007), the Supreme Court instructed federal courts to use a “categorical approach” to analyze whether a crime creates sufficient risk of physical injury to another to fit within the residual clause. We were told that under that approach we should “look only to the fact of conviction and the statutory definition of the prior offense,” and not to the “particular facts disclosed by the record of conviction.” Id. at 202,127 S.Ct. at 1594 (quotation marks omitted). It is “the elements of the offense” and not “the specific conduct of this particular offender” we examine. Id.; see also Chambers v. United States, 555 U.S. 122, 125, 129 S.Ct. 687, 690, 172 L.Ed.2d 484 (2009). And it is the “ordinary” or “generic” case that counts. Harrison, 558 F.3d at 1285; see also Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 1584, 170 L.Ed.2d 490 (2008) (“In determining whether [a] crime is a violent felony, we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.”); James, 550 U.S. at 208,127 S.Ct. at 1597 (“[T]he proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.”). Applying this categorical approach, the Supreme Court in James looked at whether attempted burglary “posed the same ‘serious potential risk of physical injury’ that a completed burglary did.” Harrison, 558 F.3d at 1285 (quoting James, 550 U.S. at 203, 127 S.Ct. at 1594). The Court concluded that it did. See James, 550 U.S. at 203-09, 127 S.Ct. at 1594-98 In" }, { "docid": "11177878", "title": "", "text": "U.S. at 209, 127 S.Ct. 1586 (holding that attempted burglary under Florida law is a violent felony under ACCA). These opinions make clear that interpretation of ACCA’s residual clause must be guided not only by the language of the residual clause itself, but also by the offenses enumerated in ACCA’s “violent felony” definition just before the residual clause. See Sykes, 131 S.Ct. at 2273; Chambers, 555 U.S. at. 127-29, 129 S.Ct. 687; Begay, 553 U.S. at. 142-44, 128 S.Ct. 1581; James, 550 U.S. at 203, 127 S.Ct. 1586. Since we make “no distinction between the terms ‘violent felony’ [as defined in the ACCA] and ‘crime of violence’ [as defined in § 4B1.2(a)(2) of the Sentencing Guidelines] for purposes of interpreting the residual clausefs],” Crews, 621 F.3d at 852 n. 4; see also id. at 855-56, the enumerated offenses that precede the residual clause in the “crime of violence” definition in the Guidelines must guide our interpretation of the residual clause in § 4B1.2(a)(2) as well. We set out the framework for analyzing whether a conviction under a state statute, such as § 708-820(l)(a), is a conviction for a “crime of violence” in United States v. Park, 649 F.3d 1175 (9th Cir.2011). For the conviction to constitute a conviction for a crime of violence, “[fjirst, the ‘conduct encompassed by the elements of the offense, in the ordinary case,’ must ‘present!] a serious potential risk of physical injury to another,’ ” id. at 1177-78 (quoting James, 550 U.S. at 208, 127 S.Ct. 1586), and “[s]econd, the state offense must be ‘roughly similar, in kind as well as in degree of risk posed’ to those offenses enumerated at the beginning of the residual clause — burglary of a dwelling, arson, extortion, and crimes involving explosives,’ ” id. at 1178 (quoting Begay, 553 U.S. at 143, 128 S.Ct. 1581). The inquiry under Park’s first prong is straightforward. But the second requirement — whether the state offense is “ ‘roughly similar, in kind as well as in degree of risk posed’ to those offenses enumerated at the beginning of the residual clause,” id. at 1178" } ]

[ { "docid": "23678597", "title": "", "text": "Mendoza was not even questioned about his children because the IJ determined that he could not meet the other requirements. Thus, the denial of counsel did prejudice Mendoza. V. Conclusion We hold that petitioner Mendoza was effectively denied his statutory right to be represented by counsel. In light of this holding, we decline to reach Mendoza’s other contentions. Mendoza’s petition for review is granted. The order that Mendoza voluntarily depart from the United States is vacated, and the case is remanded to the BIA for further proceedings consistent with this opinion. Petition GRANTED. . On March 1, 2003, the INS was abolished and its functions transferred to the Department of Homeland Security. See Homeland Security Act of 2002, Pub.L. No. 107-296, § 471, 116 Stat. 2135, 2205 (2002), 6 U.S.C. §§ 101-557. . At the July 3, 2000 hearing which Paek did not attend, the IJ told Mendoza that \"at the next hearing [Paek] will be responsible for you and him to present the evidence necessary to prove your case. And that includes an updated and current criminal record check to insure that you do not have a criminal record that would bar you or that at least I know your criminal activity, if any. He will need to provide me the evidence to prove your legal residence in this country, your good character, the equities and claim that you want me to consider in your favor.” . During the hearing, Mendoza spoke in Spanish, communicating with the IJ through an interpreter. . The immigration system in this country is plagued with \"notarios\" who prey on uneducated immigrants. See Barroso v. Gonzales, 429 F.3d 1195, 1197 n. 2 (9th Cir.2005) (“Latino immigrants often mistakenly believe that 'notarios' are lawyers because in many Latin American countries, notarios are 'a select class of elite attorneys subject to rigorous examinations, regulation, and codes of professional responsibility.' ” (citation omitted)). In this country, by contrast, notaries sometimes act as gatekeepers for \"appearance attorneys.” These appearance attorneys are known to represent their clients in immigration court with limited or no knowledge of their client’s cases," } ]

[ { "docid": "22744068", "title": "", "text": "abused its discretion in denying as untimely Avagyan’s motion to reopen on the grounds of ineffective assistance in applying for adjustment of status. We grant the petition in part and remand to the BIA with instructions to adjudicate the merits of Avagyan’s motion to reopen to apply for adjustment of status. Fajardo, 300 F.3d at 1022, n. 7. We retain jurisdiction over future appeals in this matter. PETITION GRANTED IN PART and DENIED IN PART. REMANDED. COSTS ARE AWARDED TO THE PETITIONER. . \"The INS ceased to exist in 2003, and most of its functions were transferred to the Department of Homeland Security” and Immigration and Customs Enforcement. See, e.g., Morales-Izquierdo v. Gonzales, 486 F.3d 484, 489 n. 7 (9th Cir.2007). . The term \"notario” or \"notary” in our immigration case law refers to individuals who either (a) hold themselves out as immigration law experts, even though they are not attorneys; or (b) act as gatekeepers for \"appearance attorneys\" with limited or no knowledge of their client's case. See, e.g., Mendoza-Mazariegos v. Mukasey, 509 F.3d 1074, 1077 n. 4 (9th Cir.2007). . An alien who is the parent of a United States citizen is eligible for an immediate relative visa. 8 U.S.C. §§ 1151(a); 1151(b)(2)(A)(i). In the ordinary case, once the alien’s visa has been approved, she may apply for an adjustment of status to lawful permanent resident if she is physically present in the United States and meets other requirements, not relevant here. See 8 U.S.C. § 1255(a), (c). If, however, the alien is in removal proceedings, she must file her applicalion for adjustment of status in immigration court. Though the IJ has exclusive jurisdiction over the application for adjustment of status, the United States Bureau of Citizenship and Immigration Services (USCIS — formerly part of INS) has exclusive jurisdiction to adjudicate the visa petition. See 8 C.F.R. §§ 245.2(a), 1245.2(a)(l)(i). Accordingly, if an alien in removal proceedings may be eligible for adjustment of status but does not yet have an approved visa petition, she may request a continuance of removal proceedings while USCIS adjudicates the visa petition. Dawoud" }, { "docid": "7469395", "title": "", "text": "§ 1252(a)(2)(C) deprives us of jurisdiction to review this claim. III. CONCLUSION We AFFIRM the BIA’s dismissal of Mr. Abiodun’s appeal from the IJ’s order of removal and its denial of his motion to reopen. We DENY the government’s motion to strike. . On March 1, 2003, the INS ceased to exist, see Homeland Security Act of 2002(HSA), Pub.L. No. 107-296, § 471; 116 Stat. 2135, 2205; 6 U.S.C. § 291. Three separate agencies within the Department of Homeland Security (DHS) have taken its place. The Homeland Security Act (HSA) created the Bureau of Citizenship and Immigration Services, see HSA § 451; 116 Stat 2135, 2195; 6 U.S.C. § 271, and made it responsible for adjudication of immigrant and visa petitions, naturalization petitions, and asylum and refugee applications, and adjudications performed at INS service centers, see 6 U.S.C. § 271(b). The HSA also created the Bureau of Border Security, see HSA § 442; 6 U.S.C. § 252, and gave it authority over several programs, including the Border Patrol, detention and removal, intelligence, investigations, and inspections, see HSA § 441; 6 U.S.C. §§ 251, 252(a)(3)(A)(i). In addition, the HSA transferred to DHS the nonrevenue functions of the United States Customs Service. See HSA §§ 403(1) and 412; 6 U.S.C. §§ 203(1) and 212. Section 1502 of the HSA, 6 U.S.C. § 254, authorized further reorganization. Under the reorganization the Bureau of Customs and Border Protection was created and the Bureau of Border Security was renamed the Bureau of Immigration and Customs Enforcement. Press Release, United States Department of Homeland Security, Border Reorganization Fact Sheet, (Jan. 30, 2003) available at http://www. dhs. gov/dhspublic/interapp/press_re-lease_0073.xml. It is now the responsibility of the Bureau of Customs and Border Protection “to secure the nation’s borders”; the Bureau of Immigration and Customs Enforcement \"to enforce immigration laws”; and the Bureau of Citizenship and Immigration Services \"to facilitate lawful immigration.” Press Release, United States Department of Homeland Security, Fact Sheet: Leadership and Management Strategies for Homeland Security Merger, (Feb. 11, 2004) available at http://www.dhs.gov/dhspublic/dis-play?content=3155. . This is not to say that he could not seek relief if he" }, { "docid": "22584479", "title": "", "text": "to individuals who either (a) hold themselves out as immigration law experts, even though they are not attorneys; or (b) act as gatekeepers for 'appearance attorneys’ with limited or no knowledge of their client’s case.” Avagyan v. Holder, 646 F.3d 672, 675 n. 2 (9th Cir.2011) (citing Mendoza-Mazariegos v. Mukasey, 509 F.3d 1074, 1077 n. 4 (9th Cir.2007)). Based on the record in this case, Connexion Legal falls into the latter category. . The record contains no information about the resolution of this complaint, and Dominguez has no public disciplinary history noted on the website of the State Bar of Texas, which lists Dominguez as currently working for ICE. . The Consumer Protection Unit responded by letter dated March 27, 2003, stating that the complaint had been referred to the Los Angeles City Attorney for the initial investigation. No further action on this complaint is noted in the record. .The California Bar disciplined Vega in 2007, however, for conduct somewhat similar to what occurred here. See Order, Matter of Xavier Vega, Nos. 05-0-01314-DFM & 05-0-03887-DFM (Cal. Bar Ct. Dec. 5, 2007), available at http://members.calbar.ca.gov/court Docs/05-0-01314.pdf. . In light of the apparent forgery of Santiago’s signature, the IJ explicitly did not rely on the admissions made in the first Motion to Change Venue filed by Connexion Legal. . Due to a number of concerns, including its reliability, the IJ explicitly disregarded any evidence obtained during Santiago’s arrest at the El Paso airport (the 1-213 and I-215B). As the contested evidence was excluded from consideration, we do not consider Santiago’s suppression argument. . By statute and regulation, the NTA must specify, inter alia, the alien's \"acts or conduct alleged to be in violation of law” and \"the charges against [him] and the statutory provisions alleged to have been violated.” 8 U.S.C. § 1229(a)(1)(C) & (D); 8 C.F.R. § 1003.15(b)(3) & (4). . As previously mentioned, the admission that he smuggled his wife renders Santiago removable, but that ground of removability can be waived. See 8 U.S.C. § 1182(d)(l 1); id. § 1227(a)(1)(E). Santiago never had the opportunity to seek such a waiver," }, { "docid": "8738439", "title": "", "text": "or statutory text. Even the case cited for support, Matter of Truong, supra, applied the Valderrama-Fonseca definition of “actions taken.” Accordingly, we decline to follow Tran. We adopt the definition of “actions taken” articulated by the Garrido-Morato court. Specifically, the definition of “aggravated felony,” as amended by AEDPA § 440(e) and IIRIRA § 321(a), is applicable to “actions taken,” which we hold to mean orders or decisions of the IJ or BIA which apply the “aggravated felony” definitions and thus determine the availability of discretionary hardship relief to such felons. This definition of “actions taken” makes sense considering that until a final agency order is issued by either an IJ or the BIA, an alien remains the subject of administrative adjudication “and has ... not established any right to the benefit he is seeking to obtain by his application.” Ortiz v. INS, 179 F.3d 1148, 1156 (9th Cir.1999) (quotation marks omitted). In the present case, the BIA determined that Biskupski was ineligible for suspension of deportation as an aggravated felon on March 7, 2006, well after the IIRIRA amendments took effect. The BIA must apply the law existing at the time of its review, id., and we conclude that there was no impermissible retroactive effect in doing so. IV. Because we hold that Biskupski’s federal misdemeanor conviction constitutes an “aggravated felony” within the meaning of 8 U.S.C. § 1101(a)(43)(N) and because we conclude that the statute is not impermis-sibly retroactive as applied to Biskupski, we will deny the petition for review. . On March 1, 2003, Congress transferred the INS’s functions to the Bureau of Immigration and Customs Enforcement (ICE) and the U.S. Customs and Immigration Service (USCIS) of the United States Department of Homeland Security (DHS). Homeland Security Act of 2002, Pub.L. No. 107-296, §§ 441, 451 & 471, 116 Stat. 2135, 2192, 2195-97 & 2205 (codified at 6 U.S.C. §§ 251, 271 & 291); see also Zheng v. Gonzales, 422 F.3d 98, 103 n. 2 (3d Cir.2005) (citing Knapik v. Ashcroft, 384 F.3d 84, 86 n. 2 (3d Cir.2004)). . Section 1251 of Title 8 of the United" }, { "docid": "22269898", "title": "", "text": "VACATE the portion of the district court’s decision pertaining to Ferry’s challenge to his administrative order of removal, convert that portion of Ferry’s petition for writ of habeas corpus into a petition for review, and DENY his petition for review. We AFFIRM the portion of the district court’s decision denying Ferry’s challenge to his detention. . \"On March 1, 2003, the Immigration and Naturalization Service [\"INS”] ceased to exist as an independent agency within the Department of Justice, and its functions were transferred to the Department of Homeland Security.” United States v. Sandoval, 390 F.3d 1294, 1296 n. 2 (10th Cir.2004) (citing Homeland Security Act, Pub.L. [No.] 107-296 Sec. 471, 116 Stat. 2135 (Nov. 25, 2002), 6 U.S.C. § 291). Ferry's appeals cover the time period before and after the transfer of functions between the INS and the DHS. For simplicity, this opinion refers to the immigration agency as the DHS. . The DHS’s \"immigration enforcement functions fall within the Directorate of Border and Transportation Security, while [the DHS’s] immigration services fall within the Bureau of Citizenship and Immigration Services.” Patel v. Ashcroft, 375 F.3d 693, 695 n. 1 (8th Cir.2004). . On February 4, 2005, Alberto R. Gonzales became the United States Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Alberto R. Gonzales is substituted for John Ashcroft as the respondent in Case Nos. 03-9526, 04-9555, and 05-1014. . On April 4, 2003, Ferry filed a petition for writ of mandamus requesting this court to compel the DHS to adjudicate his adjustment of status application. Case No. 03-9542. He also filed a motion for declaratory and injunc-tive relief, and an emergency motion for immediate release. On April 25, 2003, we denied Ferry’s writ of mandamus, motion for immediate declaratory and injunctive relief, and emergency motion for immediate release. Although the parties have continued to include Case No. 03-9542 in their case captions, the case is closed. . Ferry was immediately transferred to the Federal Corrections Institution in Englewood, Colorado. He remained in custody there until February 26, 2003, when he was transferred to" }, { "docid": "8777196", "title": "", "text": "lax enforcement of the laws barring entry into this country ... has resulted in the creation of a substantial ‘shadow population’ ... within our borders.” Plyler [v. Doe], 457 U.S. [202,] 218, 102 S.Ct. 2382, 72 L.Ed.2d 786 [ (1982) ]. Such persons may lack lawful status because they entered the United States illegally, either by failing to register with immigration authorities or by failing to disclose information that would have rendered them inadmissible when they entered. See 8 U.S.C. § 1227. In addition, aliens who entered legally may thereafter lose lawful status, either by failing to adhere to a condition of admission, or by committing prohibited acts (such as certain criminal offenses) after being admitted. See id. Persons here unlawfully are subject to removal from the country. Removal proceedings are initiated at the discretion of the Department of Homeland Security (“DHS”). [footnote] See Juarez v. Holder, 599 F.3d 560, 566 (7th Cir.2010)(“[T]he decision when to initiate removal proceedings is committed to the discretion of immigration authorities.” (citing Reno v. Am.-Arab Anti—Discrimination Comm., 525 U.S. 471, 489, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999))). Although certain aliens are subject to more expedited removal proceedings, for all others, section 240 of the INA sets forth the “sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States.” 8 U.S.C. § 1229a(a)(3). [Footnote:] Prior to 2003, the Immigration and Naturalization Service (“INS”), which operated under the Department of Justice, administrated both immigration services and immigration enforcement. On March 1, 2003, Congress abolished the INS. Pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, that agency’s functions were transferred to three separate agencies within the newly created Department of Homeland Security: U.S. Citizenship and Immigration Services (“USCIS”), which performs immigration and naturalization services, U.S. Immigration and Customs Enforcement (“ICE”), which enforces federal immigration and customs laws, and U.S. Customs and Border Protection (“CBP”), which monitors and secures the country’s borders. Older documents may continue to refer to the pre" }, { "docid": "22760423", "title": "", "text": "hearing....” 8 C.F.R. § 1003.2(c)(1). The BIA did not abuse its discretion when it declined to reopen proceedings because Membreno presented no new facts in her motion to reopen. DISMISSED in part and DENIED in part. . We adopt much of our factual statement and procedural history from the summary set forth in the earlier three-judge panel opinion at Membreno v. Ashcroft, 385 F.3d 1245, 1246-47 (9th Cir.) (per curiam), withdrawn by 388 F.3d 738 (9th Cir.2004). . The Department of Justice transferred the functions of the Immigration and Naturalization Service to the Department of Homeland Security in March 2003. See Homeland Security Act of 2002, Pub.L. No. 107-296, § 471, 116 Stat. 2135, 2205 (codified at 6 U.S.C. § 291) (2002). For convenience, we refer to the INS throughout rather than the Department of Homeland Security. . Because the BIA summarily affirmed the IJ’s decision we review the IJ's decision as if it were the BIA's decision. Thomas v. Gonzales, 409 F.3d 1177, 1182 (9th Cir.2005) (en banc). . Our case law recognizes two exceptions to this rule, but Membreno does not claim, and cannot claim, that either exception applies here. See Singh, 315 F.3d at 1188 (noting that court of appeals can assert jurisdiction over untimely petitions for review where alien was officially misled as to time in which to file notice of appeal or where BIA failed to comply with certain federal regulations requiring the mailing of its decision to the petitioner's (or his counsel’s) address of record). . We cannot here grant relief on the petition for review by construing Membreno's motion to reopen instead as a motion to reconsider. See Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir.2005) (affirming the BIA’s decision to construe a motion to reconsider as a motion to reopen when the motion alleged new facts rather than legal error). A motion to reconsider must be filed \"within 30 days after the mailing of the Board decision,” 8 C.F.R. § 1003.2(b)(2), and Membreno's motion was filed nearly 90 days after the initial decision. Furthermore, a motion to reconsider \"shall state the" }, { "docid": "22771592", "title": "", "text": "of immigration law, creating a new category of 'removal' proceedings that largely replaces what were formerly exclusion proceedings and deportation proceedings.... ”). To avoid more confusion than necessary, we use the term \"removal,” even when referring to a pre-1996 \"deportation.” . Contrary to the administrative record, Morales claims he was not removed at all, but that he voluntarily departed. The difference is immaterial for reinstatement purposes. See n. 14 infra. . Pre-IIRIRA, this expedited removal at the border would have been called an \"exclusion.” However, “removal” now encompasses both \"exclusion” and \"deportation.” See n. 3 supra. Again, Morales denies that he was forcibly removed, claiming that he departed voluntarily. . A prior regulation required a hearing before an immigration judge. 8 C.F.R. § 242.23 (repealed 1997). . This regulation was originally adopted by the INS, which was part of the Department of Justice. See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed.Reg. 10,312, 10,-379 (Mar. 6, 1997) (codified in scattered parts of 8 C.F.R.). The INS ceased to exist in 2003, and most of its functions were transferred to the Department of Homeland Security (DHS). See Homeland Security Act of 2002, Pub.L. No. 107-296, §§ 441, 471, 116 Stat. 2135, 2192, 2205 (codified at 6 U.S.C. §§ 251, 291). To minimize confusion, we use the term \"INS,” even when referring to DHS’ successor to the INS-U.S. Immigration and Customs Enforcement. .Section 240 also provides certain procedural protections: the right to representation, \"a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses,” and a complete record of the proceedings. INA § 240(b)(4), 8 U.S.C. § 1229a(b)(4). . See INA § 235(b)(1), 8 U.S.C. § 1225(b)(1) (directing immigration officers to \"order the alien removed ... without further hearing” for lack of valid documents or for fraud); INA § 235(c), 8 U.S.C. § 1225(c) (directing immigration officers to \"order the alien removed” if suspected of being inadmissible under security threat grounds, and report the order to the Attorney General who" }, { "docid": "21358388", "title": "", "text": "Status; Automatic Extension of Employment Authorization Documentation for Liberia TPS Beneficiaries, 71 Fed.Reg. 55000 (Sept. 20, 2006). .Under the Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135 (codified in scattered sections of 6 U.S.C.), as of March 2003 the functions of the Immigration and Naturalization Service (\"INS”) were transferred to the Bureaus of Immigration and Customs Enforcement (\"ICE”) and Citizenship and Immigration Services (\"CIS”) and the INS was then abolished. See also Reorganization Plan Modification for the Department of Homeland Security, H. Doc. No. 108-32, at 3 (2003) (renaming “Bureau of Border Security” the \"Bureau of Immigration and Customs Enforcement”), available at http://www. gpoaccess.gov/serialset/cdocuments/search. html (search 108th Congress for \"108-32”). In general, ICE handles removal of aliens while CIS handles aliens' requests for admission to, or authorization to remain in, the United States (including applications for TPS). . Although the government asked the BIA to dismiss both Bah’s appeal of the IJ’s initial order of removal and Bah's appeal of the IJ's later denial of his motion to reopen, CAR vol. 1 at 68-69, the BIA’s May 23 order addressed only the former appeal, and said not a word about the latter appeal. . The officer’s assessment that Bah was a flight risk appears to have been based on a generalization about aliens \"faced with the reality of removal,” and not on any individualized determination about Bah. . The Sixth Circuit reviewed the BIA’s decision in Pickering and agreed that immigration officials may \"count” a conviction that was vacated solely to help the defendant remain in the United States. The Sixth Circuit held, though, that the government bears the burden of demonstrating, by clear and convincing evidence, that a vacated conviction should nevertheless \"count” for immigration purposes. Pickering v. Gonzales, 465 F.3d 263, 269 (6th Cir.2006). . As Judge Mayeron recommended, R & R at 1 n. 1, the Court will grant Bah's motions for leave to file the amended petition and complaint [Docket Nos. 18 & 25] and will treat his “Verified Petition” [Docket No. 20] as the operative pleading in this matter. . The government" }, { "docid": "16599256", "title": "", "text": "in another region. Instead of adopting one of these possibilities proffered by the parties, we conclude that the Attorney General was— at the time Armentero’s petition was filed, that is, prior to November 2002 — -the appropriate respondent to an immigration detainee’s habeas petition. Under the old system, the Attorney General oversaw the activities of the INS and exercised a unique decisionmaking authority over immigration matters, including detention and parole of aliens. See 8 U.S.C. § 1103(a)(1) (2001) (“The Attorney General shall be charged with administration and enforcement of laws under[the INA].”); 8 U.S.C. § 1182(d)(5)(A) (2001) (Attorney General’s power to parole aliens and to return them to custody when he determines that the purposes of parole are served); 8 U.S.C. § 1231(a)(6) (2001) (Attorney General’s power to detain inadmissable or criminal aliens); Henderson, 157 F.3d at 126. The efficiency considerations described above also support this conclusion. Because Armentero did not designate the proper custodian when his petition was filed, however, we must now remand in order to allow him to name a proper respondent. Thus, the intervening passage of the Homeland Security Act, Pub.L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002), necessarily informs our designation of the proper respondent for the purposes of Ar-mentero’s future proceedings, as well as for habeas petitions filed after November 2002. The Homeland Security Act abolishes the INS and transfers its enforcement responsibilities to the Directorate of Border and Transportation Security (BTS), a division of the newly-created Department of Homeland Security (DHS), thereby dramatically reconfiguring the administrative structure for enforcing the nation’s immigration laws. See Pub.L. No. 107-296, §§ 402, 441, 471, 116 Stat. 2135, 2177-78, 2192, 2205; 6 U.S.C. §§ 202, 251, 291. The DHS Secretary, acting through the Under Secretary for the Directorate of BTS, is now charged with “[e]arrying out the immigration enforcement functions vested by statute in, or performed by, the Commissioner of Immigration and Naturalization (or any officer, employee, or component of the Immigration and Naturalization Service).” Pub.L. No. 107-296, § 402(3), 116 Stat. 2135, 2178; 6 U.S.C. § 202(3). These duties include administering the INS’ detention and" }, { "docid": "22584477", "title": "", "text": "of [Maravilla and Luis],” both of whom \"maintained a safe distance” from the agents as Santiago asked for help. . The I-215B states that Santiago admitted to smuggling in both his wife and his brother, but Santiago testified before the IJ that he told the agent that he had helped only his wife enter the country. Santiago admitted signing the 1-215B (which is in English), but says that it was never read to him in Spanish and that he only signed it after the agent told him that the form was just for “the judge\" to decide whether he is guilty, presumably of smuggling. . Section 1227(a)(1)(A) of Title 8 of the U.S.Code incorporates the grounds of inadmissibility as grounds of removability, stating that: \"Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.\" 8 U.S.C. § 1227(a)(1)(A). One ground of inadmissibility is that the alien, \"at any time[,] knowingly ... encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.\" 8 U.S.C. § 1182(a)(6)(E). . Section 1227(a)(l)(E)(i) of Title 8 of the U.S.Code provides that: \"Any alien who (pri- or to the date of entry, at the time of any entry, or within 5 years of the date of any entry) knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is deportable.” 8 U.S.C. § 1227(a)( 1 )(E)(i). . The INS ceased to exist in 2003, and most of its functions were transferred to the Department of Homeland Security (DHS) and its subagencies, including Immigration and Customs Enforcement (ICE). See Homeland Security Act of 2002, Pub.L. No. 107-296, §§ 441, 471, 116 Stat. 2135, 2192, 2205 (codified at 6 U.S.C. §§ 251, 291); MoralesIzquierdo v. Gonzales, 486 F.3d 484, 489 n. 7 (9th Cir.2007) (en banc). . \"The term 'notario' or 'notary' in our immigration case law refers" }, { "docid": "8738440", "title": "", "text": "after the IIRIRA amendments took effect. The BIA must apply the law existing at the time of its review, id., and we conclude that there was no impermissible retroactive effect in doing so. IV. Because we hold that Biskupski’s federal misdemeanor conviction constitutes an “aggravated felony” within the meaning of 8 U.S.C. § 1101(a)(43)(N) and because we conclude that the statute is not impermis-sibly retroactive as applied to Biskupski, we will deny the petition for review. . On March 1, 2003, Congress transferred the INS’s functions to the Bureau of Immigration and Customs Enforcement (ICE) and the U.S. Customs and Immigration Service (USCIS) of the United States Department of Homeland Security (DHS). Homeland Security Act of 2002, Pub.L. No. 107-296, §§ 441, 451 & 471, 116 Stat. 2135, 2192, 2195-97 & 2205 (codified at 6 U.S.C. §§ 251, 271 & 291); see also Zheng v. Gonzales, 422 F.3d 98, 103 n. 2 (3d Cir.2005) (citing Knapik v. Ashcroft, 384 F.3d 84, 86 n. 2 (3d Cir.2004)). . Section 1251 of Title 8 of the United States Code was redesignated as § 1227 by the passage of IIRIRA in 1996. IIRIRA, Pub.L. No. 104-208, § 305, 110 Stat. 3009-546, 3009-598 (1996). . Biskupski's case was transferred from Boston, Massachusetts to Newark, New Jersey on February 28, 1996. . United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in the United States by the Foreign Affairs Reform and Restructuring Act of 1998, Pub.L. No. 105-277, § 2242, 112 Stat. 2681-761, 2681-822 (codified at 8 U.S.C. § 1231). .On appeal to the BIA, Biskupski did not • raise any challenges to the denial of his applications for asylum, withholding of deportation or protection under CAT and, likewise, does not raise any such challenges to this Court. . By the same amendment, Congress created an exception in the case of a first offense where the alien affirmatively demonstrated that he or she \"committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child or parent....” IIRI-RA, §" }, { "docid": "16599257", "title": "", "text": "Thus, the intervening passage of the Homeland Security Act, Pub.L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002), necessarily informs our designation of the proper respondent for the purposes of Ar-mentero’s future proceedings, as well as for habeas petitions filed after November 2002. The Homeland Security Act abolishes the INS and transfers its enforcement responsibilities to the Directorate of Border and Transportation Security (BTS), a division of the newly-created Department of Homeland Security (DHS), thereby dramatically reconfiguring the administrative structure for enforcing the nation’s immigration laws. See Pub.L. No. 107-296, §§ 402, 441, 471, 116 Stat. 2135, 2177-78, 2192, 2205; 6 U.S.C. §§ 202, 251, 291. The DHS Secretary, acting through the Under Secretary for the Directorate of BTS, is now charged with “[e]arrying out the immigration enforcement functions vested by statute in, or performed by, the Commissioner of Immigration and Naturalization (or any officer, employee, or component of the Immigration and Naturalization Service).” Pub.L. No. 107-296, § 402(3), 116 Stat. 2135, 2178; 6 U.S.C. § 202(3). These duties include administering the INS’ detention and removal program. Pub.L. No. 107-296, § 441(2), 116 Stat. 2135, 2192; 6 U.S.C. § 251(2). Because the Homeland Security Act transfers most immigration law enforcement responsibilities from the INS, a subdivision of the Department of Justice, to the BTS, a subdivision of the Department of Homeland Security, the extent of the Attorney General’s power to direct the detention of aliens is unclear. Notably, statutory language relied on by the Second Circuit in Henderson for the proposition that the Attorney General plays a uniquely pervasive role in detaining aliens remains intact, as do other provisions granting the Attorney General power to detain aliens. See, e.g., 8 U.S.C. § 1182(d)(5)(A) (Attorney General may parole an individual alien or return him “to the custody from which he was paroled”); 8 U.S.C. § 1226(c) (Attorney General is required to detain and has the power to release certain criminal aliens); 8 U.S.C. § 1231(a)(6) (Attorney General may determine whether to detain removable and inadmissable aliens); 8 U.S.C. § 1252(b)(3)(A) (designating Attorney General as respondent in petitions for review brought by" }, { "docid": "22977097", "title": "", "text": "violations in his removal proceedings. Entry of the 2001 removal order was therefore not fundamentally unfair under 8 U.S.C. § 1326(d). AFFIRMED. . Under 8 U.S.C. § 1225, the Attorney General also has the discretion to remove inadmissible arriving aliens through expedited proceedings. See 8 C.F.R. § 1235.3 (outlining requirements for expedited removal proceedings under § 1225). It should be noted, however, that these expedited proceedings are different in several respects from those involved here under § 1228. See generally United States v. Barajas-Alvarado, 655 F.3d 1077, 1081-82 (9th Cir.2011). . Prior to 2003, immigration offenses were largely handled by the Immigration and Naturalization Service (\"INS”). This agency ceased to exist in 2003, and most of its functions were transferred to the Department of Homeland Security and its subagency, ICE. See Homeland Security Act of 2002, §§ 441, 471, 6 U.S.C. §§ 251, 291; Morales-Izquierdo v. Gonzales, 486 F.3d 484, 489 n. 7 (9th Cir.2007) (en banc). To minimize confusion, we refer only to ICE, although Reyes’s 2001 removal was handled by INS. . While not disputing the accuracy of the statements attributed to him, Reyes notes that the name of the interpreter is not provided on the form, just the interpreter's license number. . Through the addition of subsection (d) to 8 U.S.C. § 1362 in 1996, Congress partially codified the Court's decision in Mendoza-Lopez. United States v. Garcia-Martinez, 228 F.3d 956, 959 n. 5 (9th Cir.2000). . To the extent that the district court's statements imply a finding of fact that either Reyes could read the Notice of Intent or that he was advised of the rights outlined therein in Spanish, such a finding was clearly erroneous because it is unsupported by the record. See United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.2009) (en banc) (factual findings are clearly erroneous when they are \"without 'support in inferences that may be drawn from the facts in the record’ ”) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 577, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). While the government has defended the district court’s finding of" }, { "docid": "22744067", "title": "", "text": "afforded equitable tolling of deadlines and numerical limitations to aliens who are prevented from timely or adequately filing due to ineffective assistance of counsel. The Supreme Court’s decisions in Wallace and hawrence do not undermine our equitable tolling jurisprudence, particularly in light of the Court’s decision in Holland. We conclude that Avagyan first had reason to became suspicious of counsels’ ineffectiveness in preparing her asylum claim after the BIA denied her appeal on February 25, 2005, and did not establish her diligence in discovering counsel’s deficiency or continuing to pursue asylum after that date. Thus, we hold that the BIA did not abuse its discretion when it concluded that Avagyan’s motion to reopen on this ground was untimely. Nevertheless, we hold that Avagyan did not have reason to become suspicious of her prior counsels’ ineffectiveness in pursuing adjustment of status until she met with her current counsel. Avagyan then, with due diligence, obtained and reviewed her file, and filed a motion to reopen within ninety days of reviewing the file with competent counsel. The BIA abused its discretion in denying as untimely Avagyan’s motion to reopen on the grounds of ineffective assistance in applying for adjustment of status. We grant the petition in part and remand to the BIA with instructions to adjudicate the merits of Avagyan’s motion to reopen to apply for adjustment of status. Fajardo, 300 F.3d at 1022, n. 7. We retain jurisdiction over future appeals in this matter. PETITION GRANTED IN PART and DENIED IN PART. REMANDED. COSTS ARE AWARDED TO THE PETITIONER. . \"The INS ceased to exist in 2003, and most of its functions were transferred to the Department of Homeland Security” and Immigration and Customs Enforcement. See, e.g., Morales-Izquierdo v. Gonzales, 486 F.3d 484, 489 n. 7 (9th Cir.2007). . The term \"notario” or \"notary” in our immigration case law refers to individuals who either (a) hold themselves out as immigration law experts, even though they are not attorneys; or (b) act as gatekeepers for \"appearance attorneys\" with limited or no knowledge of their client's case. See, e.g., Mendoza-Mazariegos v. Mukasey, 509 F.3d" }, { "docid": "23145838", "title": "", "text": "of the Attorney General’s immigration-related responsibilities to the newly formed Department of Homeland Security. See Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135 (2002); Alli v. Decker, 650 F.3d 1007, 1009 n. 2 (3d Cir.2011). . Because the Government relies solely on the 2005 conviction for its authority to detain Diop, we do not reach the issue of whether he can be detained because of his 1995 conviction. In addition, because the parties do not question the constitutional adequacy of a Joseph hearing, we decline to address it here. We note, however, that the issue is an open one, see Demore v. Kim, 538 U.S. 510, 514 n. 2, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), and that at least one circuit judge has expressed grave doubts as to whether Joseph is consistent with due process of law, see Tijani v. Willis, 430 F.3d 1241, 1244 (9th Cir.2005) (Tashima, J., concurring). . The responsibilities of the INS were assumed by three different agencies — ICE, Customs and Border Protection, and Citizenship and Immigration Services — within DHS when Congress passed the Homeland Security Act of 2002. See Lin-Zheng v. Attorney General, 557 F.3d 147, 152 n. 4 (3d Cir.2009) (citing Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135 (2002)). . Although it did not frame the issue this way, we read Justice Kennedy's decision to uphold the statute on its face, while leaving open the possibility that it might be unconstitutional as applied. In other words, Congress did not violate the Constitution when it passed the law, but the Executive Branch might violate the Constitution in individual circumstances depending on how the law is applied. See Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 Stan. L.Rev. 1209, 1230-35 (2010) (describing “as applied” and facial challenges in this manner). . In this regard, we note that our decision today differs from our prior decision in Patel v. Zemski, 275 F.3d 299 (3d Cir.2001), which was overruled by the Supreme Court in Demore. See Demore, 538 U.S. at 516, 123 S.Ct. 1708. Patel’s holding was" }, { "docid": "23584750", "title": "", "text": "the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this Act, and the alien shall be removed under the prior order at any time after the reentry. INA § 241(a)(5). . Congress recently abolished the INS as an independent agency within the Department of Justice and transferred its functions to the newly established Department of Homeland Security. See Homeland Security Act, Pub.L. 107-296, § 471, 116 Stat. 2135, 2205 (codified as amended at 6 U.S.C. § 291(a)) (2002). The INS functions relevant to this case, including the adjudication of asylum claims, now reside in the Bureau of Citizenship and Immigration Services within the Department of Homeland Security. Because the petitioner was detained before this change took place, we continue to refer to the agency as the INS. We note, however, that our jurisdiction derives from INA § 242(b)(2) (8 U.S.C. § 1252(b)(2)) (2003), so the proper respondent is the United States Attorney General, see INA § 242(b)(3)(A) (8 U.S.C. § 1252(b)(3)(A)) (2003). . In point of fact, subsection (b)(3) uses the word \"stay” rather than either \"enjoin” or \"restrain,” see INA § 242(b)(3)(B) (stating that service of a petition for judicial review \"does not stay the removal of an alien\"), making it even less likely that this subsection was intended to incorporate the language of subsection (f)(2). . The administrative record may be particularly scanty in cases such as the petitioner’s. Under INA § 241(a)(5), aliens are no longer afforded an opportunity for a hearing. See Bejjani, 271 F.3d at 675-76. . In criminal cases, other rubrics may apply (e.g., the Double Jeopardy Clause or the Ex Post Facto Clause). Despite its grave consequences, however, deportation constitutes a matter of civil rather than criminal procedure. Harisiades v. Shaughnessy, 342 U.S. 580, 594-95, 72 S.Ct. 512, 96 L.Ed. 586 (1952); Seale" }, { "docid": "22771593", "title": "", "text": "The INS ceased to exist in 2003, and most of its functions were transferred to the Department of Homeland Security (DHS). See Homeland Security Act of 2002, Pub.L. No. 107-296, §§ 441, 471, 116 Stat. 2135, 2192, 2205 (codified at 6 U.S.C. §§ 251, 291). To minimize confusion, we use the term \"INS,” even when referring to DHS’ successor to the INS-U.S. Immigration and Customs Enforcement. .Section 240 also provides certain procedural protections: the right to representation, \"a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses,” and a complete record of the proceedings. INA § 240(b)(4), 8 U.S.C. § 1229a(b)(4). . See INA § 235(b)(1), 8 U.S.C. § 1225(b)(1) (directing immigration officers to \"order the alien removed ... without further hearing” for lack of valid documents or for fraud); INA § 235(c), 8 U.S.C. § 1225(c) (directing immigration officers to \"order the alien removed” if suspected of being inadmissible under security threat grounds, and report the order to the Attorney General who will decide whether to provide a hearing); INA § 238, 8 U.S.C. § 1228 (directing the Attorney General to institute expedited removal procedures — either by an immigration judge or officer — for aliens convicted of aggravated felonies). . Or, in the words of Judge Fernandez, \"An objective observer would have asked, as Congress did, just what was the purpose of all of that procedure, all of those punctilious nice ties, which can take years to complete, if the person could just step back into the country a few days later and have the roundelay go on?” Castro-Cortez, 239 F.3d at 1054 (Fernandez, J., dissenting). . Congress first instituted reinstatement in 1950, but only for certain immigrants (e.g., '‘subversives” and \"anarchists”). Fernandez-Vargas v. Gonzales, - U.S. -, 126 S.Ct. 2422, 2425-26, 165 L.Ed.2d 323 (2006) (citing Internal Security Act of 1950, § 23, 64 Stat. 1012). The INA, passed in 1952, broadened the reinstatement provision to apply to a somewhat larger class of aliens, those deported for engaging in certain unlawful activities — e.g., smuggling," }, { "docid": "22584478", "title": "", "text": "assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.\" 8 U.S.C. § 1182(a)(6)(E). . Section 1227(a)(l)(E)(i) of Title 8 of the U.S.Code provides that: \"Any alien who (pri- or to the date of entry, at the time of any entry, or within 5 years of the date of any entry) knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is deportable.” 8 U.S.C. § 1227(a)( 1 )(E)(i). . The INS ceased to exist in 2003, and most of its functions were transferred to the Department of Homeland Security (DHS) and its subagencies, including Immigration and Customs Enforcement (ICE). See Homeland Security Act of 2002, Pub.L. No. 107-296, §§ 441, 471, 116 Stat. 2135, 2192, 2205 (codified at 6 U.S.C. §§ 251, 291); MoralesIzquierdo v. Gonzales, 486 F.3d 484, 489 n. 7 (9th Cir.2007) (en banc). . \"The term 'notario' or 'notary' in our immigration case law refers to individuals who either (a) hold themselves out as immigration law experts, even though they are not attorneys; or (b) act as gatekeepers for 'appearance attorneys’ with limited or no knowledge of their client’s case.” Avagyan v. Holder, 646 F.3d 672, 675 n. 2 (9th Cir.2011) (citing Mendoza-Mazariegos v. Mukasey, 509 F.3d 1074, 1077 n. 4 (9th Cir.2007)). Based on the record in this case, Connexion Legal falls into the latter category. . The record contains no information about the resolution of this complaint, and Dominguez has no public disciplinary history noted on the website of the State Bar of Texas, which lists Dominguez as currently working for ICE. . The Consumer Protection Unit responded by letter dated March 27, 2003, stating that the complaint had been referred to the Los Angeles City Attorney for the initial investigation. No further action on this complaint is noted in the record. .The California Bar disciplined Vega in 2007, however, for conduct somewhat similar to what occurred here. See Order, Matter of Xavier Vega, Nos. 05-0-01314-DFM & 05-0-03887-DFM" }, { "docid": "22977096", "title": "", "text": "fact that Reyes was effectively denied the assistance of counsel in 2001, we have considered the evidence presented now in the light most favorable to him. Yet even the best counsel cannot succeed on a claim that has no factual support, and the record here does not indicate any evidence in existence in 2001 upon which Reyes could have sought CAT relicf. Accordingly, we hold that he has not demonstrated a plausible claim to relief from the 2001 removal order and was therefore not prejudiced by the violation of his due process right to counsel during his removal proceedings. IV. CONCLUSION Reyes did not waive his right to counsel and was denied his due process right to counsel because he was not properly advised of his rights in a language that he could understand. We hold that this violation of his right to counsel was not inherently prejudicial, however. Because Reyes cannot demonstrate that he had a plausible claim to relief in 2001, he was not actually prejudiced as a result of the due process violations in his removal proceedings. Entry of the 2001 removal order was therefore not fundamentally unfair under 8 U.S.C. § 1326(d). AFFIRMED. . Under 8 U.S.C. § 1225, the Attorney General also has the discretion to remove inadmissible arriving aliens through expedited proceedings. See 8 C.F.R. § 1235.3 (outlining requirements for expedited removal proceedings under § 1225). It should be noted, however, that these expedited proceedings are different in several respects from those involved here under § 1228. See generally United States v. Barajas-Alvarado, 655 F.3d 1077, 1081-82 (9th Cir.2011). . Prior to 2003, immigration offenses were largely handled by the Immigration and Naturalization Service (\"INS”). This agency ceased to exist in 2003, and most of its functions were transferred to the Department of Homeland Security and its subagency, ICE. See Homeland Security Act of 2002, §§ 441, 471, 6 U.S.C. §§ 251, 291; Morales-Izquierdo v. Gonzales, 486 F.3d 484, 489 n. 7 (9th Cir.2007) (en banc). To minimize confusion, we refer only to ICE, although Reyes’s 2001 removal was handled by INS. . While" } ]

[ { "docid": "22300121", "title": "", "text": "of processes, dealings, or other affairs that can be “directed.” Our cases also make clear that an enterprise “is an entity separate and apart from the pattern of activity in which it engages.” United States v. Turkette, 452 U. S. 576, 583 (1981). As with the requirement that an enterprise have businesslike characteristics, that an enterprise must have a separate existence is confirmed by § 1962(e) and Reves. If an entity's existence consisted solely of its members’ performance of a pattern of racketeering acts, the “enterprise’s affairs” would be synonymous with the “pattern of racketeering activity.” Section 1962(c) would then prohibit an individual from conducting or participating in “the conduct of [a pattern of racketeering activity] through a pattern of racketeering activity” — a reading that is unbearably redundant, particularly in a case like this one in which a single pattern of activity is alleged. The only way to avoid that result is to require that an “enterprise’s affairs” be something other than the pattern of racketeering activity undertaken by its members. Recognizing an enterprise’s businesslike nature and its distinctness from the pattern of predicate acts, however, does not answer the question of what proof each element requires. In cases involving a legal entity, the matter of proving the enterprise element is straightforward, as the entity’s legal existence will always be something apart from the pattern of activity performed by the defendant or his associates. Cf. Cedric Kushner Promotions, Ltd. v. King, 533 U. S. 158, 163 (2001). But in the case of an assoeiationin-fact enterprise, the Government must adduce other evidence of the entity’s “separate” existence and “ongoing organization.” Turkette, 452 U. S., at 583. There may be cases in which a jury can infer that existence and continuity from the evidence used to establish the pattern of racketeering activity. Ibid. But that will be true only when the pattern of activity is so complex that it could not be performed in the absence of structures or processes for planning or concealing the illegal conduct beyond those inherent in performing the predicate acts. More often, proof of an enterprise’s" } ]

[ { "docid": "6540226", "title": "", "text": "show: “(1) an enterprise existed; (2) the enterprise participated in or its activities affected interstate commerce; (3) the defendant was employed by or was associated with the enterprise; (4) the defendant conducted or participated in the conduct of the enterprise; (5) through a pattern of racketeering activity.” United States v. Marino, 277 F.3d 11, 33 (1st Cir.2002). The appellants challenge the sufficiency of the evidence on the first, second, and fifth elements. VICAR, as well as RICO, is in play here. VICAR requires that a defendant have committed a crime of violence in return for something of pecuniary value from, or in order to advance or maintain his position within, an enterprise affecting interstate commerce that is engaging in a pattern of racketeering activity. 18 U.S.C. § 1959. Thus, a successful sufficiency challenge to the RICO convictions also will serve to undermine the VICAR convictions. Similarly, inasmuch as Nascimen-to’s conviction under 18 U.S.C. § 924 was predicated on his having committed a VICAR assault on Zilla DoCanto, that conviction will be nullified if the VICAR charge is found to be unsupportable. Although the appellants’ arguments come in a kaleidoscopic array of shapes and sizes (including frontal attacks on the sufficiency of the evidence, questions about statutory construction, constitutional challenges, and complaints about jury instructions), we organize our discussion thematically, element by element. A. The first element of a RICO offense requires proof of the existence of an enterprise. The enterprise need not be a legitimate business or a form of organization sanctioned by state law. United States v. Turkette, 452 U.S. 576, 587, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). It “need only be a group of persons associated together for a common purpose of engaging in a criminal course of conduct.” United States v. Connolly, 341 F.3d 16, 28 (1st Cir.2003) (citations and internal quotation marks omitted). Despite the absence of any requirement of formal sanction, the government nonetheless must prove that the enterprise existed in some coherent and cohesive form. Turkette, 452 U.S. at 583, 101 S.Ct. 2524. It follows that the enterprise must have been an “ongoing" }, { "docid": "23176043", "title": "", "text": "U.S.C. §§ 1962(c) and (d) (1976) (“RICO”). Specifically they argue that the government failed to establish the existence of an “enterprise,” within the meaning of the RICO statute, separate and apart from the underlying pattern of racketeering activity. Both the law and the facts of this case defeat their argument. In United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), the Supreme Court held that a RICO enterprise could be engaged solely in illegitimate activity without fusing the enterprise with the pattern of racketeering activity. In reaching its decision the Court discussed the elements of RICO and the meaning of the word “enterprise” under the statute. It stated: That a wholly criminal enterprise comes within the ambit of the statute does not mean that a ‘pattern of racketeering activity’ is an ‘enterprise.’ In order to secure a conviction under RICO, the Government must prove both the existence of an ‘enterprise’ and the connected ‘pattern of racketeering activity.’ The enterprise is an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct. The pattern of racketeering activity is, on the other hand, a series of criminal acts as defined by the statute [citation omitted]. The former is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit. The latter is proved by evidence of the requisite number of acts of racketeering committed by the participants in the enterprise. While the proof used to establish these separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. 452 U.S. at 583, 101 S.Ct. at 2528. Thus, in order to prove a substantive RICO violation the government must prove both an enterprise and a pattern of racketeering activity. United States v. Cagnina, 697 F.2d 915 (11th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 175, 78 L.Ed.2d 157 (1983). A pattern of racketeering activity alone is not a crime under RICO. The gravamen of a RICO offense is conducting an" }, { "docid": "23407159", "title": "", "text": "restrict the enterprise to only a legitimate business organization. United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). The appellants argue, though, that Turkette’s emphasis of the distinctness of the enterprise element requires a more detailed enterprise instruction than the preTurkette cases indicated. The Eighth Circuit interpreted Turkette in this light and demanded that a jury find that an enterprise have an “ascertainable structure,” a “common goal as to its members,” and operate as a “continuing unit.” Bledsoe, 674 F.2d at 665. That court also specifically doubted the continued propriety of Elliott. Id. We must turn to the language of Turkette to resolve the question whether Elliott instructions can provide the correct guide to a jury. That decision detailed: That a wholly criminal enterprise comes within the ambit of the statute does not mean that a “pattern of racketeering activity” is an “enterprise.” In order to secure a conviction under RICO, the Government must prove both the existence of an “enterprise” and the connected “pattern of racketeering activity.” The enterprise is an entity, for present purposes a group of persons associated together for a common purpose of en-' gaging in a course of conduct. The pattern of racketeering activity is, on the other hand, a series of criminal acts as defined by the statute. 18 U.S.C. § 1961(1) (1976 ed., Supp. III). The former is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit. The latter is proved by evidence of the requisite number of acts of racketeering committed by the participants in the enterprise. While the proof used to establish these separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The “enterprise” is not the “pattern of racketeering activity;” it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the Government. Turkette, 452 U.S. at 583, 101 S.Ct. at 2528, 69" }, { "docid": "4225767", "title": "", "text": "complement RICO. It allows the government not only to prosecute under RICO for conduct that constitutes a pattern of racketeering activity in connection with an enterprise, but also to prosecute for violent crimes intended, among other things, to permit a defendant to maintain his position in a RICO enterprise. Id. We thus draw on cases decided under Section 1961(4) to determine what constitutes an enterprise under Section 1959. The defendants’ argument that then-drug enterprise must have had a goal “separate and apart” from drag dealing in order to be a racketeering enterprise stems from language in United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246. In Turkette, the Supreme Court decided that a RICO “enterprise” is not limited to legitimate enterprises, but includes illegitimate enterprises that have an exclusively criminal purpose. The language on which defendants rely is as follows: In order to secure a conviction under RICO, the Government must prove both the existence of an “enterprise” and the connected “pattern of racketeering activity.” ... The [enterprise] is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit. The [pattern of racketeering activity] is proved by evidence of the requisite number of acts of racketeering committed by the participants in the enterprise. While the proof used to establish these separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The enterprise ... is an entity separate and apart from the pattern, of activity in which it engages. Id. at 583, 101 S.Ct. at 2528-2529 (emphasis added). Defendants read this language as requiring the enterprise to have a purpose separate and apart from the pattern of racketeering activity. The position is simply insupportable. The Court was merely emphasizing that proof of an enterprise is separate and apart from proof of a pattern of racketeering activity. Thus the two elements are separate and apart, and “the proof used to establish these separate elements may in particular cases coalesce_” Id. Defendants also draw some support from two opinions of this" }, { "docid": "22823254", "title": "", "text": "legal entity.” 18 U.S.C. § 1961(4). In United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528-29, 69 L.Ed.2d 246 (1981), the Supreme Court stated that an enterprise “is an entity separate and apart from the pattern of activity in which it engages,” and that it is “proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” In United States v. Riccobene, 709 F.2d 214, 222 (3d Cir.), cert. denied, 464 U.S. 849,104 S.Ct. 157, 78 L.Ed.2d 145 (1983), “we construed Turkette to require proof of each of the three sub-elements referred to by the Court in this passage”: (1) proof of an ongoing organization, (2) proof that the associates function as a continuing unit, and (3) proof that the enterprise is an “entity separate and apart from the pattern of activity in which it engages.” United States v. Pelullo, 964 F.2d 193, 211 (3d Cir.1992) (citing Riccobene, 709 F.2d at 221-24). Thus, although the proof used to establish the existence of an enterprise and a pattern of racketeering “may in particular eases coalesce,” proof of a pattern of racketeering activity “does not necessarily” establish the existence of an enterprise. Id. In this case, the government alleged that the RICO enterprise was an association in fact composed of the law firm and Markoffs medical practice and designed “to enrich its members through the pursuit of personal injury business.” Govt. Br. at 13. The appellants argue, however, that the evidence did not demonstrate (1) “that there was any kind of organizational structure for decision-making,” (2) that the appellants associated together on more than “an ad hoc basis,” or (3) that the “enterprise existed separate and apart from the racketeering activity alleged.” Markoff Br. at 9,12. Thus, according to the appellants, “[a]ll that was shown was that the medical practice and the lawyer’s office combined to commit mail fraud on an ad hoe basis.” Id. at 12. The existence vel non of a RICO enterprise is a question of fact for the jury. Riccobene, 709 F.2d at 222." }, { "docid": "23274809", "title": "", "text": "jury to find the requisite two predicate acts of racketeering from what was actually only one act. For the most part we disagree with these contentions. A. The Enterprise Requirement The enterprise alleged by the indictment here does not fall under the “legal entity” part of 18 U.S.C. § 1961(4)’s enterprise definition, but is instead a “group of individuals associated in fact although not a legal entity.” The Supreme Court, in United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), rejected arguments that a “completely illegal organization” such as the one here could not be a RICO enterprise. However, the Court was careful to make clear that it is not enough in the case of such an “associational enterprise” simply to establish a pattern of racketeering activity. Instead, “[t]he existence of an enterprise at all times remains a separate element which must be proved by the Government.” Id. at 583. An enterprise is established “by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” Ibid. The enterprise “is an entity separate and apart from the pattern of [racketeering] activity in which it engages,” ibid; see also United States v. Anderson, 626 F.2d 1358, 1365 (8th Cir.1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981), although the proof of these separate elements “may in particular cases coalesce.” Turkette, 452 U.S. at 583, 101 S.Ct. at 2529. See generally United States v. Riccobene, 709 F.2d 214, 221-23 (3d Cir.), cert. denied, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983). Following Turkette, this Court in United States v. Bledsoe, 674 F.2d 647, 664-65 (8th Cir.), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982), identified three characteristics that distinguish a RICO enterprise: First, there must be a common or shared purpose that animates the individuals associated with it. Second, it must be an “ongoing organization” whose members “function as a continuing unit,” Turkette, 452 U.S. at 583, 101 S.Ct. at 2528; in other words, there must be some" }, { "docid": "6540227", "title": "", "text": "charge is found to be unsupportable. Although the appellants’ arguments come in a kaleidoscopic array of shapes and sizes (including frontal attacks on the sufficiency of the evidence, questions about statutory construction, constitutional challenges, and complaints about jury instructions), we organize our discussion thematically, element by element. A. The first element of a RICO offense requires proof of the existence of an enterprise. The enterprise need not be a legitimate business or a form of organization sanctioned by state law. United States v. Turkette, 452 U.S. 576, 587, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). It “need only be a group of persons associated together for a common purpose of engaging in a criminal course of conduct.” United States v. Connolly, 341 F.3d 16, 28 (1st Cir.2003) (citations and internal quotation marks omitted). Despite the absence of any requirement of formal sanction, the government nonetheless must prove that the enterprise existed in some coherent and cohesive form. Turkette, 452 U.S. at 583, 101 S.Ct. 2524. It follows that the enterprise must have been an “ongoing organization” operating as a “continuous unit.” Connolly, 341 F.3d at 25. In all events, the enterprise must be distinct from the pattern of racketeering activity that constitutes the fifth, and final, element of a RICO offense. See Turkette, 452 U.S. at 583, 101 S.Ct. 2524. An enterprise is chiefly distinguished from the pattern of racketeering activity by the fact that it possesses some goal or purpose more pervasive and more enduring than the instant gratification that can accrue from the successful completion of each particular criminal act. See Connolly, 341 F.3d at 25. Here, the appellants argue that the government failed to present sufficient evidence of the existence of an enterprise or, alternatively, that the district court’s jury instructions obscured the difference between RICO’s “enterprise” and “pattern” elements. In a related vein, they argue that the government failed to prove that the enterprise was of sufficient duration vis-a-vis the time frame that was set forth in the indictment. We address these arguments sequentially. 1. We first ponder the sufficiency of the government’s evidence concerning the" }, { "docid": "16379744", "title": "", "text": "of racketeering committed by the participants in the enterprise. While the proof used to establish these separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The “enterprise” is not the “pattern of racketeering activity”; it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the Government. Turkette, 452 U.S. at 583, 101 S.Ct. 2524 (citation omitted). As this passage makes clear, an enterprise is not merely a related assortment of criminal activities. Rather, there must be some goal — “a purpose of engaging in a course of conduct” — beyond the isolated benefit that can redound from the commission of each criminal act, and there must be an “ongoing organization” with “associates functioning] as a continuous unit.” Id. The organization need not be formal or have an “ascertainable structure.” United States v. Patrick, 248 F.3d 11, 19 (1st Cir.2001). To the contrary, it need only be a “group of persons associated together for a common purpose of engaging in a criminal course of conduct.” United States v. Owens, 167 F.3d 739, 751 n. 6 (1st Cir.1999) (quoting United States v. Doherty, 867 F.2d 47, 68 (1st Cir.1989)) (modification omitted). 4. Connolly’s Arguments a. Continuity Connolly argues that the evidence failed to demonstrate “that the members of the alleged enterprise had functioned as an ongoing organization” (original emphasis). , In pressing this claim, he focuses on the fourteen racketeering acts alleged in the indictment. These fourteen acts were submitted to the jury for a determination of “proven beyond a reasonable doubt” or “not proven beyond a reasonable doubt.” Of the fourteen, the jury found nine of them “not proven beyond a reasonable doubt.” Of the racketeering acts found by the jury to be “proven beyond a reasonable doubt,” one was an act of bribery in 1982 or 1988, and the other were four acts of obstruction of justice in the mid- to late-1990s in connection with the United States v. Salemme" }, { "docid": "18426282", "title": "", "text": "the enterprise requirement. In support of his argument, Plaintiff relies upon the Supreme Court’s liberal definition of an enterprise in United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528-29, 69 L.Ed.2d 246 (1981). The Court in Turkette specified as one type of enterprise “a group of persons associated together for a common purpose of engaging in a course of conduct.” Id. The existence of such an enterprise is proved “by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” Id. This proof must go beyond proof of the “pattern of racketeering activity” which also most be proved in order to satisfy RICO. The Turkette Court stated: While the proof used to establish the separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The “enterprise” is not the “pattern of racketeering activity;” it is an entity separate and apart from the pattern of activity in which it engages. Id. Gladstone argues that Plaintiff fails to state a RICO violation because he does not allege an enterprise apart from the predicate acts of racketeering. We disagree. Plaintiff alleges an ongoing organization; indeed, Plaintiff was led to believe he was a member of a partnership. The organization purchased horses on five occasions. For each purchase, Kroner and Gladstone acted as salesmen, and purported to act as investors, Doonan acted as seller or sales agent, boarder and trainer of the horses, and as treasurer. Monthly bills were sent in the names of the purported partners. A less structured organization served as the enterprise in United States v. Aleman, 609 F.2d 298 (7th Cir.1979), in which the Seventh Circuit affirmed a criminal RICO conviction based on evidence that the defendants planned and executed three home robberies. The defendants there used a particular club as a meeting place. One defendant paid the others for carrying out the robberies. The court considered that organization a RICO enterprise and compared it to a small business, with a “proprietor,” “business office,” and a “limited payroll.” Id. at 305." }, { "docid": "21655907", "title": "", "text": "The Government described the enterprise in this case as an association-in-fact. An association-in-fact RICO enterprise is “a group of persons associated together for a common purpose of engaging in a course of conduct.” See United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). “[A]n association-in-fact enterprise must have at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s purpose.” Boyle, 556 U.S. at 946, 129 S.Ct. 2237. Its existence is “proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit .... separate and apart from the pattern of activity in which it engages.” See Turkette, 452 U.S. at 583, 101 S.Ct. 2524. A RICO conspiracy must also involve an agreement to commit a “pattern of racketeering activity” which “requires at least two acts of racketeering activity.” See § 1961(5). “[T]he existence of an enterprise is an element distinct from the pattern of racketeering activity and ‘proof of one does not necessarily establish the other.’ ” Boyle, 556 U.S. at 947, 129 S.Ct. 2237 (quoting Turkette, 452 U.S. at 583, 101 S.Ct. 2524). For example, if “several individuals, independently and without coordination, engaged in a pattern of crimes listed as RICO predicates^] ... [p]roof of these patterns would not be enough to show that the individuals were members of an enterprise.” See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 367 (3d Cir. 2010) (quoting Boyle, 556 U.S. at 947 n.4, 129 S.Ct. 2237). However, “the evidence used to prove the pattern of racketeering activity and the evidence establishing an enterprise ‘may in particular cases coalesce.’ ” See Boyle, 556 U.S. at 947, 129 S.Ct. 2237 (quoting Turkette, 452 U.S. at 583, 101 S.Ct. 2524). “The existence vel non of a RICO enterprise is a question of fact for the jury.” Console, 13 F.3d at 650. The indictment alleged that defendants Fattah, Vederman, Brand, Nicholas, and Bowser participated in one or more of the five criminal schemes" }, { "docid": "6962926", "title": "", "text": "from the alleged racketeering activity. In United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528-29, 69 L.Ed.2d 246 (1981), the Supreme Court addressed the requirement of pleading an enterprise as a separate element from the “pattern” of racketeering activity: In order to secure a conviction under RICO, the Government must prove both the existence of an “enterprise” and the connected “pattern of racketeering activity.” The enterprise is an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct. The pattern of racketeering activity is, on the other hand, a series of criminal acts as defined by the statute. 18 USC § 1961(1) (1976 ed. Supp III) [18 USCS § 1961(1)]. The former is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit. The latter is proved by evidence of the requisite number of acts of racketeering committed by the participants in the enterprise. While the proof used to establish these separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The “enterprise” is not the “pattern of racketeering activity”; it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the Government. (Emphasis added). The Court’s statements in Turkette were made as a basis for reversing the circuit court’s holding that a wholly criminal organization could not be a RICO “enterprise”. The Court of Appeals had reasoned, in part, that if a criminal organization could be a RICO enterprise, pleading the underlying “pattern of racketeering” would suffice as to the “enterprise” requirement as well, but, the court reasoned, this could not have been the statute’s purpose. 452 U.S. at 582,101 S.Ct. at 2528. The Supreme Court rejected this reasoning and held that the two requirements — although related — are separate, and that a wholly criminal enterprise can be a RICO enterprise, noting, “Language in" }, { "docid": "21550681", "title": "", "text": "attack on his RICO conviction, Blandford maintains that the government failed to establish the existence of an “enterprise” and that the predicate acts did not establish a “pattern” of racketeering activity. The Supreme Court defined and distinguished these concepts in instructing that [i]n order to secure a conviction under RICO, the Government must prove both the existence of an “enterprise” and the connected “pattern of racketeering activity.” The enterprise is an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct. The pattern of racketeering activity is, on the other hand, a series of criminal acts as defined by the statute. The former is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit. The latter is proved by evidence of the requisite number of acts of racketeering com mitted by participants in the enterprise. While the proof used to establish these separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The “enterprise” is not the “pattern of racketeering activity”; it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the Government. United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528-29, 69 L.Ed.2d 246 (1981) (citation and footnote omitted); see also 18 U.S.C. § 1961(4) (defining RICO “enterprise” to include “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity”). Here, we are satisfied that the government met its burden of proving both a RICO enterprise and a pattern of racketeering activity. As to the existence of an enterprise, Blandford contends that the “Office of the Representative for House District 14 together with the individuals employed therein” is not, in fact, an “enterprise” within the meaning of 18 U.S.C. § 1961(4). He points out that “[t]here was neither a physical" }, { "docid": "23529261", "title": "", "text": "organization with the requisite continuity or structure to constitute an enterprise. Simply stated, their argument is that the racketeering acts alleged in the indictment were attributable to various individuals, acting alone or with others, trying to settle personal beefs. Thus, they dispute that the evidence showed a pattern of racketeering activity because the individuals’ actions were not related to activities of an enterprise. Finally, they submit that the evidence failed to demonstrate that the trial defendants participated in the operation or management of an enterprise. We review a challenge to the sufficiency of the evidence by considering the evidence in the light most favorable to the government, giving credit to every inference the jury might have drawn in the government’s favor. United States v. Dhinsa, 243 F.3d 635, 648 (2d Cir.2001). We will affirm if any rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 649. The weight of the evidence is not for us to consider, and thus any lack of corroboration is irrelevant because that speaks to the weight and not the sufficiency of the evidence. See United States v. Hamilton, 334 F.3d 170, 179 (2d Cir.2003). A RICO conviction requires the government to prove that the defendant participated or conspired to participate, directly or indirectly, in the conduct of an enterprise through a pattern of racketeering activity. United States v. Allen, 155 F.3d 35, 40 (2d Cir.1998). A. A RICO enterprise is “a group of persons associated together for a common purpose of engaging in a course of conduct,” proved by “evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). An enterprise is an entity. Id. The trial defendants assert that, while the evidence showed that some members of the Burden family and a few of their friends were part of a group that bought and sold drugs, the group lacked the structure required of an enterprise. They assert that no" }, { "docid": "2145451", "title": "", "text": "S.Ct. 2678, 81 L.Ed.2d 874 (1984). As the record is ambiguous on whether appellants made this claim to the district court, see United States v. Perholtz, 667 F.Supp. 603 (D.D.C.1986), J.A. at 103, we emphasize that we would reject appellants’ argument even if they did adequately preserve it. Appellants primarily rely on United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), which held that RICO encompasses both legitimate and illegitimate enterprises. One of the reasons given by the appellate court that reached the opposite conclusion was that inclusion of illegitimate enterprises would eviscerate the distinction between the enterprise and the pattern of racketeering. The Supreme Court rejected this argument: In order to secure a conviction under RICO, the Government must prove both the existence of an “enterprise” and the connected “pattern of racketeering activity.” The enterprise is an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct. The pattern of racketeering activity is, on the other hand, a series of criminal acts as defined by the statute. 18 U.S.C. § 1961(1) (1976 ed., Supp. III). The former is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit. The latter is proved by evidence of the requisite number of acts of racketeering committed by the participants in the enterprise. While the proof used to establish these separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The “enterprise” is not the “pattern of racketeering activity”; it is an entity separate and apart from the pattern of activity in which it engages. 452 U.S. at 583, 101 S.Ct. at 2528-29 (emphasis added). As we read this passage, the government is required to prove that the associates are bound together by some form of organization so that they function as a continuing unit, and thus constitute an “enterprise.” Although organization is not necessarily established by proof of a pattern of racketeering activity, the existence of the enterprise" }, { "docid": "8767429", "title": "", "text": "(5) an “enterprise”; (6) the activities of which affect interstate or foreign commerce. See Madanes, 981 F.Supp. at 252 (citing Moss v. Morgan Stanley, 719 F.2d 5, 17 (2d Cir.1983)). In order to have standing, plaintiff must also show that injuries to its business or property were “proximately caused by a pattern of racketeering activity violating section 1962 or by individual RICO predicate acts.” Lerner v. Fleet Bank N.A., 318 F.3d 113, 122-23 (2d Cir.2003). Defendants argue that plaintiffs pleading of these elements has been deficient in a number of respects. Since we conclude that the plaintiff has not adequately alleged a RICO enterprise, we need not address other arguments raised by the defendants in support of their motions to dismiss. B. The “Enterprise” RICO broadly defines the term “enterprise” to include “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). The Supreme Court had held that a RICO enterprise is “a group of persons associated together for a common purpose of engaging in a course of conduct” which must be proved “by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). See also First Capital Asset Management, Inc. v. Satinwood, Inc., 385 F.3d 159, 173 (2d Cir.2004)(quoting Turkette). Furthermore, the alleged enterprise must be an “entity separate and apart from the pattern of racketeering activity in which it engages.” Turkette, 452 U.S. at 583, 101 S.Ct. 2524. The Second Circuit has construed the enterprise element liberally and does not require RICO plaintiffs to plead continuity beyond the performance of racketeering acts or a centralized structure to establish the enterprise element. In addition, the same evidence may be used to establish a “pattern” of predicate acts and an “enterprise” in this Circuit. United States v. Mazzei, 700 F.2d 85, 89 (2d Cir.1983). Although the standard for pleading an enterprise is not particularly burdensome, at least" }, { "docid": "6755025", "title": "", "text": "F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986). “In order to secure a conviction under RICO, the Government must prove both the existence of an ‘enterprise’ and the connected ‘pattern of racketeering activity.’ ” United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528-2529, 69 L.Ed.2d 246 (1981). Under Turkette, the existence of an enterprise is proved “by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” Id. The issues of ongoing organization, continuing membership and an enterprise existing apart from the underlying pattern of racketeering are factual questions for the jury. United States v. Riccobene, 709 F.2d 214, 222 (3d Cir.), cert. denied, Ciancaglini v. United States, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983). Although the pattern of racketeering activity and the enterprise are separate elements of a RICO violation, the government need not necessarily adduce different proof for each element. Turkette, 452 U.S. at 583, 101 S.Ct. at 2528-2529. 16] Although courts have differed in their views of how separate and distinct the existence of the enterprise must be from the underlying pattern of racketeering, we conclude that the evidence presented in defendant’s case was sufficient to establish the existence of a RICO enterprise. For purposes of this appeal, we will employ the Third Circuit Court of Appeal’s elaboration of a framework for analyzing the existence of an enterprise as stated in Riccobene, 709 F.2d at 222-24. In this case, we conclude that the evidence establishes the first element stated in the Riccobene framework, i.e., an ongoing organization with a decision-making framework or mechanism for controlling the group. 709 F.2d at 222. A witness, Urban Gordon, testified that he was in charge of selling the heroin and Sanders was in charge of maintaining supply, with Gordon and Sanders receiving $18.00 in profit per $30.00 dosage unit. (R.Vol. VII, 375). After Gordon left the organization, other people, such as Ray Gene Jeffries and Elmer Quinn, occupied this same position or role of overseeing street" }, { "docid": "11692154", "title": "", "text": "other instances amount to a pattern of racketeering activity as defined and prohibited in RICO ...” Furthermore, plaintiffs must also allege an enterprise distinct from the pattern of racketeering activity in order to state a claim for a violation of section 1962(c). Even if the Court accepts plaintiffs’ argument that they have properly alleged that defendants formed an enterprise to deny valid insurance claims, that allegation does not assert an enterprise with a separate economic existence from the alleged pattern of racketeering. In United States v. Turk-ette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528, 69 L.Ed.2d 246 (1980), the Supreme Court stated: “The enterprise” is not “the pattern of racketeering activity”; it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the government. In Moss v. Morgan Stanley, Inc., 553 F.Supp. 1347,1360 (S.D.N.Y.1983), the court observed: [T]he requirement of United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528, 69 L.Ed.2d 246 (1981), that the plaintiff must establish that the enterprise is an entity separate and apart from the pattern of racketeering activity makes clear that a violation of RICO is not set forth simply by alleging that the enumerated felonies of Section 1961 have been committed. If the enterprise that the plaintiff is relying upon is the criminal partnership of the defendants, the plaintiff must establish that there is something more to this partnership than the commission of the underlying felonies. For example, a developed infrastructure for the criminal partnership, used to help carry out its goals and enforce its aims, would suffice to give the group an adequate separate identity to meet the requirement of Turkette; supra. However, if all that the criminal partnership consists of is the commission of the requisite felonies, no violation of Section 1962 can be shown. Proof that the criminal partnership was an “on-going organization, formal or informal,” with its associates functioning “as a continuing unit,” Turkette at 583, 101 S.Ct. at 2528, will suffice to meet" }, { "docid": "6755024", "title": "", "text": "drugs, (R.Vol. VIII, 632), we do not find that the defendant has demonstrated that the trial court abused its discretion in failing to strike this testimony. In short, the court does not find that defendant has dem onstrated the existence of any reversible error in the district court’s evidentiary rulings below or that, on this record, the cumulative effect of any alleged error affected defendant’s substantial rights. Rivera, 900 F.2d at 1470. Thus, defendant’s request for a new trial will be denied. III. In his second issue on appeal, defendant contends that the evidence at trial failed to establish the existence of “an enterprise,” a necessary element of defendant’s convictions under RICO. As stated in United States v. Hooks, a single test applies in reviewing the sufficiency of the evidence in criminal cases: “[t]he evidence — both direct and circumstantial, together with reasonable inferences to be drawn therefrom — is sufficient if, when taken in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.” 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986). “In order to secure a conviction under RICO, the Government must prove both the existence of an ‘enterprise’ and the connected ‘pattern of racketeering activity.’ ” United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528-2529, 69 L.Ed.2d 246 (1981). Under Turkette, the existence of an enterprise is proved “by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” Id. The issues of ongoing organization, continuing membership and an enterprise existing apart from the underlying pattern of racketeering are factual questions for the jury. United States v. Riccobene, 709 F.2d 214, 222 (3d Cir.), cert. denied, Ciancaglini v. United States, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983). Although the pattern of racketeering activity and the enterprise are separate elements of a RICO violation, the government need not necessarily adduce different proof for each element. Turkette, 452 U.S. at 583, 101 S.Ct. at" }, { "docid": "7530237", "title": "", "text": "determine that there was a type of hierarchical decision-making based on testimony as to one member being voted out the gang, one member being appointed to a higher level, of lower-ranking members going to higher-ranking members for drugs, and of higher-ranking members controlling the pooling of money for lower-ranking members. The continuity of an informal enterprise with differentiated roles amongst the participants provides the necessary “structure” to satisfy the statutory requirements of an enterprise. Korando, 29 F.3d at 1117-18 (citation omitted). Defendants incorrectly argue' that the structure evidence collapsed into the evidence of racketeering activity. As we noted in Rogers, the language of Turkette does not require “the enterprise to have a purpose separate and apart from the pattern of racketeering activity.” 89 F.3d at 1336 (emphasis in original) (citing Turkette, 452 U.S. at 583, 101 S.Ct. 2524). We held that the Court in Turkette “was merely emphasizing that proof of an enterprise is separate and apart from proof of a pattern of racketeering activity. Thus the two elements are separate and apart,, and ‘the proof used to establish these separate elements may in particular cases coalesce Id. (emphasis in original) (citing Turkette, 452 U.S. at 583, 101 S.Ct. 2524). “[I]t would be nonsensical to require proof that an enterprise had purposes or goals separate and apart from the pattern of racketeering activity.” Id. at 1337. “[T]he fact that a single individual may engage in a pattern of racketeering activity without, of course, comprising an enterprise adequately illustrated the inherent and logical distinction between the two elements.” Id. The district court properly instructed the jury on the elements as to enterprise and racketeering activity; that an enterprise required elements beyond the “racketeering activity” acts of dealing in controlled substances. The evidence was sufficient to allow the jury to find that Dawg Life was “an entity separate and apart from the pattern of activity in which it engages.” See Turkette, 452 U.S. at 583, 101 S.Ct. 2524. 2. Violent Crimes to Maintain or Increase Position in Enterprise Taylor, Stork, and Wafford all challenge the sufficiency of the evidence as to their" }, { "docid": "8767430", "title": "", "text": "together for a common purpose of engaging in a course of conduct” which must be proved “by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). See also First Capital Asset Management, Inc. v. Satinwood, Inc., 385 F.3d 159, 173 (2d Cir.2004)(quoting Turkette). Furthermore, the alleged enterprise must be an “entity separate and apart from the pattern of racketeering activity in which it engages.” Turkette, 452 U.S. at 583, 101 S.Ct. 2524. The Second Circuit has construed the enterprise element liberally and does not require RICO plaintiffs to plead continuity beyond the performance of racketeering acts or a centralized structure to establish the enterprise element. In addition, the same evidence may be used to establish a “pattern” of predicate acts and an “enterprise” in this Circuit. United States v. Mazzei, 700 F.2d 85, 89 (2d Cir.1983). Although the standard for pleading an enterprise is not particularly burdensome, at least some proof of ongoing association and a shared purpose is needed to adequately plead and prove a RICO enterprise. See First Capital Asset Management, 385 F.3d at 173-74; United States v. Coonan, 938 F.2d 1553, 1560-61 (2d Cir.1991). In this case, plaintiff claims that a single “association-in-fact” enterprise involving all seventeen defendants participated in a wide-ranging pattern of predicate acts including extortion, bribery and money laundering. Plaintiff essentially claims that Lucent, Lucent officers and employees, and various defendants associated with Bugshan were united in a “joint venture” having the common purpose of bribing Al-Johani. See Tr. of Dec. 2, 2005 Conf. at 33-34. However, despite the length of the most recent complaint, plaintiff fails to set forth facts to support the conclusion that all seventeen defendants were actually working with one another or associated together in a single ongoing organization or continuing unit where members worked together to accomplish a common purpose. See First Capital Asset Management, 385 F.3d at 174 (“For ah association of individuals to constitute an enterprise, the individuals must share a" } ]

[ { "docid": "23148613", "title": "", "text": "at 41; 28 U.S.C. § 1605(a)(2). It is time, Michigan concludes, to “level[ ] the playing field.” Brief for Michigan 38. But this Court does not overturn its precedents lightly. Stare decisis, we have stated, “is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Although “not an inexorable command,” id., at 828, 111 S.Ct. 2597, stare decisis is a foundation stone of the rule of law, necessary to ensure that legal rules develop “in a principled and intelligible fashion,” Vasquez v. Hillery, 474 U.S. 254, 265, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). For that reason, this Court has always held that “any departure” from the doctrine “demands special justification.” Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). And that is more than usually so in the circumstances here. First, Kiowa, itself was no one-off: Rather, in rejecting the identical argument Michigan makes, our decision reaffirmed a long line of precedents, concluding that “the doctrine of tribal immunity”—without any exceptions for commercial or off-reservation conduct—“is settled law and controls this case.” 523 U.S., at 756, 118 S.Ct. 1700; see id., at 754-755, 118 S.Ct. 1700; supra, at 2030 - 2032. Second, we have relied on Kiowa subsequently: In another case involving a tribe’s off-reservation commercial conduct, we began our analysis with Kiowa’s holding that tribal immunity applies to such activity (and then found that the Tribe had waived its protection). See C & L Enterprises, 532 U.S., at 418, 121 S.Ct. 1589. Third, tribes across the country, as well as entities and individuals doing business with them, have for many years relied on Kiowa (along with its forebears and progeny), negotiating their contracts and structuring their transactions against a backdrop of tribal immunity. As in other cases involving contract and property rights, concerns of stare decisis are thus “at their acme.” State Oil Co. v. Khan," } ]

[ { "docid": "19452492", "title": "", "text": "state-law issues to federal courts. It makes federal courts a principal player in local and state land-use disputes. It betrays judicial federalism. IV Everything said above aside, Williamson County should stay on the books because of stare decisis . Adherence to precedent is \"a foundation stone of the rule of law.\" Michigan v. Bay Mills Indian Community , 572 U.S. 782, 798, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014). \"[I]t promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.\" Payne v. Tennessee , 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Stare decisis , of course, is \"not an inexorable command.\" Id. , at 828, 111 S.Ct. 2597. But it is not enough that five Justices believe a precedent wrong. Reversing course demands a \"special justification-over and above the belief that the precedent was wrongly decided.\" Kimble v. Marvel Entertainment, LLC , 576 U.S. ----, ----, 135 S.Ct. 2401, 2409, 192 L.Ed.2d 463 (2015) (internal quotation marks omitted). The majority offers no reason that qualifies. In its only real stab at a special justification, the majority focuses on what it calls the \" San Remo preclusion trap.\" Ante , at 2167. As the majority notes, this Court held in a post- Williamson County decision interpreting the full faith and credit statute, 28 U.S.C. § 1738, that a state court's resolution of an inverse condemnation proceeding has preclusive effect in a later federal suit. See San Remo Hotel, L. P. v. City and County of San Francisco , 545 U.S. 323, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005) ; ante , at 2167 - 2168, 2169 - 2170, 2178 - 2179. The interaction between San Remo and Williamson County means that \"many takings plaintiffs never have the opportunity to litigate in a federal forum.\" Ante , at 2179. According to the majority, that unanticipated result makes Williamson County itself \"unworkable.\" Ibid. But in highlighting the preclusion concern, the majority only adds to the case for respecting stare decisis -because that" }, { "docid": "19446370", "title": "", "text": "(2002), and McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), were wrongly decided. Under the reasoning of our decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and the original meaning of the Sixth Amendment, facts that increase the statutory minimum sentence (no less than facts that increase the statutory maximum sentence) are elements of the offense that must be found by a jury and proved beyond a reasonable doubt. Ante, at 2156. Of course, under our doctrine of stare decisis, establishing that a decision was wrong does not, without more, justify overruling it. While stare decisis is not an \"inexorable command,\" Hohn v. United States, 524 U.S. 236, 251, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998) (internal quotation marks omitted), it is \"a basic self-governing principle within the Judicial Branch, which is entrusted with the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon 'an arbitrary discretion,' \" Patterson v. McLean Credit Union, 491 U.S. 164, 172, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (quoting The Federalist, No. 78, p. 490 (H. Lodge ed. 1888) (A. Hamilton)). We generally adhere to our prior decisions, even if we question their soundness, because doing so \"promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.\" Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). To protect these important values, we require a \" ' \"special justification\" ' \" when departing from precedent. Dickerson v. United States, 530 U.S. 428, 443, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). A special justification is present here. As an initial matter, when procedural rules are at issue that do not govern primary conduct and do not implicate the reliance interests of private parties, the force of stare decisis is reduced. See United States v. Gaudin, 515 U.S. 506, 521, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) ; Payne, 501 U.S., at 828, 111 S.Ct." }, { "docid": "6461107", "title": "", "text": "decisis. Courts do not set aside long-standing practices absent a substantial reason. See Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 2310, 81 L.Ed.2d 164 (1984) (“[A]ny departure from the doctrine of stare decisis demands special justification.”). See generally 18 Moore’s Federal Practice § 134.06[l][a] (3d ed.1997). The principle of stare decisis is integral to our jurisprudence “because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991). Stare decisis, moreover, has “special force in the area of statutory interpretation, for here .. .the legislative power is implicated, and Congress remains free to alter what we have done.” Patterson v. McLean Credit Union, 491 U.S. 164, 172-73, 109 S.Ct. 2363, 2370, 105 L.Ed.2d 132 (1989). In Patterson, the Court provided guidance about when prior decisions may be overruled: In cases where statutory precedents have been overruled, the primary reason for the Court’s shift in position has been the intervening development of the law, through either the growth of judicial doctrine or further action taken by Congress. Where such changes have removed or weakened the conceptual underpinnings from the prior decision, or where the later law has rendered the decision irreconcilable with competing legal doctrines or policies, the Court has not hesitated to overrule an earlier decision. iff # * * * sfc Another traditional justification for overruling a prior case is that a precedent may be a positive detriment to coherence and consistency in the law, either because of inherent confusion created by an unworkable decision, or because the decision poses a direct obstacle to the realization of important objectives embodied in other laws. Finally, it has sometimes been said that a precedent becomes more vulnerable as it becomes outdated and after being tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare. Id. at 173-74, 109 S.Ct. at 2370-71 (internal quotation marks and citations omitted)." }, { "docid": "22493611", "title": "", "text": "U.S. ----, ----, 134 S.Ct. 2024, 2036, 188 L.Ed.2d 1071 (2014) ). It \"promotes the evenhanded, predictable, and consistent development\" of legal doctrine. Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). It fosters respect for and reliance on judicial decisions. See ibid. And it \"contributes to the actual and perceived integrity of the judicial process,\" ibid., by ensuring that decisions are \"founded in the law rather than in the proclivities of individuals,\" Vasquez v. Hillery, 474 U.S. 254, 265, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). And Abood is not just any precedent: It is embedded in the law (not to mention, as I'll later address, in the world) in a way not many decisions are. Over four decades, this Court has cited Abood favorably many times, and has affirmed and applied its central distinction between the costs of collective bargaining (which the government can charge to all employees) and those of political activities (which it cannot). See, e.g., Locke v. Karass, 555 U.S. 207, 213-214, 129 S.Ct. 798, 172 L.Ed.2d 552 (2009) ; Lehnert, 500 U.S., at 519, 111 S.Ct. 1950 ; Teachers v. Hudson, 475 U.S. 292, 301-302, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986) ; Ellis v. Railway Clerks, 466 U.S. 435, 455-457, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984). Reviewing those decisions not a decade ago, this Court-unanimously-called the Abood rule \"a general First Amendment principle.\" Locke, 555 U.S., at 213, 129 S.Ct. 798. And indeed, the Court has relied on that rule when deciding cases involving compelled speech subsidies outside the labor sphere-cases today's decision does not question. See, e.g., Keller v. State Bar of Cal., 496 U.S. 1, 9-17, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990) (state bar fees); Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 230-232, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000) (public university student fees); Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457, 471-473, 117 S.Ct. 2130, 138 L.Ed.2d 585 (1997) (commercial advertising assessments); see also n. 3, supra . Ignoring our repeated validation of Abood, the" }, { "docid": "19408542", "title": "", "text": "do so now for the future, because the current compact has expired and remains in effect only until the parties negotiate a new one, see Tr. of Oral Arg. 21). And in that event, the limitation Congress placed on IGRA's abrogation of tribal immunity-whether or not anomalous as an abstract matter-would have made no earthly difference. IV Because IGRA's plain terms do not abrogate Bay Mills' immunity from this suit, Michigan (and the dissent) must make a more dramatic argument: that this Court should \"revisit[ ] Kiowa 's holding\" and rule that tribes \"have no immunity for illegal commercial activity outside their sovereign territory.\" Reply Brief 8, 10; see post, at 2040. Michigan argues that tribes increasingly participate in off-reservation gaming and other commercial activity, and operate in that capacity less as governments than as private businesses. See Brief for Michigan 38 (noting, among other things, that \"tribal gaming revenues have more than tripled\" since Kiowa ). Further, Michigan contends, tribes have broader immunity from suits arising from such conduct than other sovereigns-most notably, because Congress enacted legislation limiting foreign nations' immunity for commercial activity in the United States. See id., at 41; 28 U.S.C. § 1605(a)(2). It is time, Michigan concludes, to \"level[ ] the playing field.\" Brief for Michigan 38. But this Court does not overturn its precedents lightly. Stare decisis, we have stated, \"is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.\" Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Although \"not an inexorable command,\" id., at 828, 111 S.Ct. 2597,stare decisis is a foundation stone of the rule of law, necessary to ensure that legal rules develop \"in a principled and intelligible fashion,\" Vasquez v. Hillery, 474 U.S. 254, 265, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). For that reason, this Court has always held that \"any departure\" from the doctrine \"demands special justification.\" Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 81 L.Ed.2d" }, { "docid": "22531803", "title": "", "text": "decisions.\" Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). As important, it \"contributes to the actual and perceived integrity of the judicial process,\" ibid., by ensuring that decisions are \"founded in the law rather than in the proclivities of individuals,\" Vasquez v. Hillery, 474 U.S. 254, 265, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). For all those reasons, this Court has always held that \"any departure\" from precedent \"demands special justification.\" Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). And Abood is not just any precedent: It is entrenched in a way not many decisions are. Over nearly four decades, we have cited Abood favorably numerous times, and we have repeatedly affirmed and applied its core distinction between the costs of collective bargaining (which the government can demand its employees share) and those of political activities (which it cannot). See, e.g.,Locke v. Karass, 555 U.S. 207, 213-214, 129 S.Ct. 798, 172 L.Ed.2d 552 (2009); Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 519, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991); Teachers v. Hudson, 475 U.S. 292, 301-302, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986); Ellis v. Railway Clerks, 466 U.S. 435, 455-457, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984). Reviewing those decisions, this Court recently-and unanimously-called the Abood rule \"a general First Amendment principle.\" Locke, 555 U.S., at 213-215, 129 S.Ct. 798. And indeed, the Court has relied on that rule in deciding cases involving compulsory fees outside the labor context-which today's majority reaffirms as good law, see ante, at 2643 - 2644. See, e.g.,Keller v. State Bar of Cal., 496 U.S. 1, 9-17, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990) (state bar fees); Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 230-232, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000) (public university student fees); Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457, 471-473, 117 S.Ct. 2130, 138 L.Ed.2d 585 (1997) (commercial advertising assessments). Not until two years ago, in Knox v. Service Employees, 567 U.S. ----, 132 S.Ct. 2277, 183 L.Ed.2d" }, { "docid": "367631", "title": "", "text": "Seitz, C.J.); 848 (Gibbons, J., dissenting); 849 (Sloviter, J.). We are thus left with the action taken by the full court in Bazzano. Clearly, it is binding precedent. Moreover, it is a precedent established by the full court only three years ago. Thus, what the Supreme Court said in Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 2311, 81 L.Ed.2d 164 (1984), seems especially appropriate here: Petitioner has invited the Court to overrule Bullington [v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981)], decided only three years ago. We decline the invitation. Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands special justification. See, e.g., Swift & Co. v. Wickham, 382 U.S. 111, 116, 86 S.Ct. 258, 261, 15 L.Ed.2d 194 (1965); Smith v. Allwright, 321 U.S. 649, 665, 64 S.Ct. 757, 765, 88 L.Ed. 987 (1944). Petitioner has suggested no reason sufficient to warrant our taking the exceptional action of overruling Bulling-ton. And more recently the Supreme Court has stated: Today’s decision is supported, though not compelled, by the important doctrine of stare decisis, the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion. That doctrine permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact. While stare decisis is not an inexorable command, the careful observer will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged “to bring its opinions into agreement with experience and with facts newly ascertained”. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 412, 52 S.Ct. 443, 450, 76 L.Ed. 815 (1932) (Brandéis, J., dissenting). Vasquez v. Hillery, — U.S.-,-, 106 S.Ct. 617, 625, 88 L.Ed.2d 598 (1986). After a careful examination of the briefs, we are satisfied" }, { "docid": "19643455", "title": "", "text": "has power in the relevant market and so might be able to curtail competition. See Brief for Petitioners 47-48; Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28, 44, 126 S.Ct. 1281, 164 L.Ed.2d 26 (2006) (\"[A] patent does not necessarily confer market power\"). Resolving that issue, Kimble notes, entails \"a full-fledged economic inquiry into the definition of the market, barriers to entry, and the like.\" Brief for Petitioners 48 (quoting 1 H. Hovenkamp, M. Janis, M. Lemley, & C. Leslie, IP and Antitrust § 3.2e, p. 3-12.1 (2d ed., Supp. 2014) (Hovenkamp)). III Overruling precedent is never a small matter. Stare decisis -in English, the idea that today's Court should stand by yesterday's decisions-is \"a foundation stone of the rule of law.\" Michigan v. Bay Mills Indian Community, 572 U.S. ----, ----, 134 S.Ct. 2024, 2036, 188 L.Ed.2d 1071 (2014). Application of that doctrine, although \"not an inexorable command,\" is the \"preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.\" Payne v. Tennessee, 501 U.S. 808, 827-828, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). It also reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation. Respecting stare decisis means sticking to some wrong decisions. The doctrine rests on the idea, as Justice Brandeis famously wrote, that it is usually \"more important that the applicable rule of law be settled than that it be settled right.\" Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (dissenting opinion). Indeed, stare decisis has consequence only to the extent it sustains incorrect decisions; correct judgments have no need for that principle to prop them up. Accordingly, an argument that we got something wrong-even a good argument to that effect-cannot by itself justify scrapping settled precedent. Or otherwise said, it is not alone sufficient that we would decide a case differently now than we did then. To reverse course, we require as well what we" }, { "docid": "9278317", "title": "", "text": "\"[I]t promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.\" Payne v. Tennessee , 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). To be sure, stare decisis is \"not an inexorable command.\" Id., at 828, 111 S.Ct. 2597. But any departure from the doctrine demands \"special justification\"-something more than \"an argument that the precedent was wrongly decided.\" Halliburton Co. v. Erica P. John Fund, Inc. , 573 U.S. 258, 266, 134 S.Ct. 2398, 189 L.Ed.2d 339 (2014). And that is even more than usually so in the circumstances here. First, Kisor asks us to overrule not a single case, but a \"long line of precedents\"-each one reaffirming the rest and going back 75 years or more. Bay Mills , 572 U.S. at 798, 134 S.Ct. 2024 ; see nn. 2, 3, supra . This Court alone has applied Auer or Seminole Rock in dozens of cases, and lower courts have done so thousands of times. Deference to reasonable agency interpretations of ambiguous rules pervades the whole corpus of administrative law. Second, because that is so, abandoning Auer deference would cast doubt on many settled constructions of rules. As Kisor acknowledged at oral argument, a decision in his favor would allow relitigation of any decision based on Auer , forcing courts to \"wrestle [with] whether or not Auer \" had actually made a difference. Tr. of Oral Arg. 30; see id., at 47 (Solicitor General agreeing that \"every single regulation that's currently on the books whose interpretation has been established under Seminole Rock now [would have] to be relitigated anew\"). It is the rare overruling that introduces so much instability into so many areas of law, all in one blow. And third, even if we are wrong about Auer , \"Congress remains free to alter what we have done.\" Patterson v. McLean Credit Union , 491 U.S. 164, 172-173, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (stating that when that is so, \"[c]onsiderations of stare decisis have special force\"). In" }, { "docid": "19408543", "title": "", "text": "Congress enacted legislation limiting foreign nations' immunity for commercial activity in the United States. See id., at 41; 28 U.S.C. § 1605(a)(2). It is time, Michigan concludes, to \"level[ ] the playing field.\" Brief for Michigan 38. But this Court does not overturn its precedents lightly. Stare decisis, we have stated, \"is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.\" Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Although \"not an inexorable command,\" id., at 828, 111 S.Ct. 2597,stare decisis is a foundation stone of the rule of law, necessary to ensure that legal rules develop \"in a principled and intelligible fashion,\" Vasquez v. Hillery, 474 U.S. 254, 265, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). For that reason, this Court has always held that \"any departure\" from the doctrine \"demands special justification.\" Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). And that is more than usually so in the circumstances here. First, Kiowa itself was no one-off: Rather, in rejecting the identical argument Michigan makes, our decision reaffirmed a long line of precedents, concluding that \"the doctrine of tribal immunity\"-without any exceptions for commercial or off-reservation conduct-\"is settled law and controls this case.\" 523 U.S., at 756, 118 S.Ct. 1700; see id., at 754-755, 118 S.Ct. 1700;supra, at 2030 - 2032. Second, we have relied on Kiowa subsequently: In another case involving a tribe's off-reservation commercial conduct, we began our analysis with Kiowa 's holding that tribal immunity applies to such activity (and then found that the Tribe had waived its protection). See C & L Enterprises, 532 U.S., at 418, 121 S.Ct. 1589. Third, tribes across the country, as well as entities and individuals doing business with them, have for many years relied on Kiowa (along with its forebears and progeny), negotiating their contracts and structuring their transactions against a backdrop of tribal immunity. As in other cases involving contract and property" }, { "docid": "19452491", "title": "", "text": "whenever possible from deciding novel or difficult state-law questions. That stance, as this Court has long understood, respects the \"rightful independence of the state governments,\" \"avoid[s] needless friction with state policies,\" and promotes \"harmonious relation[s] between state and federal authority.\" Railroad Comm'n of Tex. v. Pullman Co. , 312 U.S. 496, 500-501, 61 S.Ct. 643, 85 L.Ed. 971 (1941). For that reason, this Court has promoted practices of certification and abstention to put difficult state-law issues in state judges' hands. See, e.g. , Arizonans for Official English v. Arizona , 520 U.S. 43, 77, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (encouraging certification of \"novel or unsettled questions of state law\" to \"hel[p] build a cooperative judicial federalism\"); Louisiana Power & Light Co. v. City of Thibodaux , 360 U.S. 25, 28, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959) (approving federal-court abstention in an eminent domain proceeding because such cases \"turn on legislation with much local variation interpreted in local settings\"). We may as well not have bothered. Today's decision sends a flood of complex state-law issues to federal courts. It makes federal courts a principal player in local and state land-use disputes. It betrays judicial federalism. IV Everything said above aside, Williamson County should stay on the books because of stare decisis . Adherence to precedent is \"a foundation stone of the rule of law.\" Michigan v. Bay Mills Indian Community , 572 U.S. 782, 798, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014). \"[I]t promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.\" Payne v. Tennessee , 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Stare decisis , of course, is \"not an inexorable command.\" Id. , at 828, 111 S.Ct. 2597. But it is not enough that five Justices believe a precedent wrong. Reversing course demands a \"special justification-over and above the belief that the precedent was wrongly decided.\" Kimble v. Marvel Entertainment, LLC , 576 U.S. ----, ----, 135 S.Ct. 2401, 2409, 192 L.Ed.2d 463 (2015)" }, { "docid": "22493609", "title": "", "text": "dismissed such work-related interests, as the majority does here. See supra, at 2489 - 2491 (discussing the majority's refusal to engage with the logic of the State's position). Time and again, the Court has instead respected and acceded to those interests-just as Abood did. The key point about Abood is that it fit naturally with this Court's consistent teaching about the permissibility of regulating public employees' speech. The Court allows a government entity to regulate that expression in aid of managing its workforce to effectively provide public services. That is just what a government aims to do when it enforces a fair-share agreement. And so, the key point about today's decision is that it creates an unjustified hole in the law, applicable to union fees alone. This case is sui generis among those addressing public employee speech-and will almost surely remain so. III But the worse part of today's opinion is where the majority subverts all known principles of stare decisis . The majority makes plain, in the first 33 pages of its decision, that it believes Abood was wrong. But even if that were true (which it is not), it is not enough. \"Respecting stare decisis means sticking to some wrong decisions.\" Kimble v. Marvel Entertainment, LLC, 576 U.S. ----, ----, 135 S.Ct. 2401, 2409, 192 L.Ed.2d 463 (2015). Any departure from settled precedent (so the Court has often stated) demands a \"special justification-over and above the belief that the precedent was wrongly decided.\" Id., at ----, 135 S.Ct., at 2409 (internal quotation marks omitted); see, e.g., Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). And the majority does not have anything close. To the contrary: all that is \"special\" in this case-especially the massive reliance interests at stake-demands retaining Abood, beyond even the normal precedent. Consider first why these principles about precedent are so important. Stare decisis -\"the idea that today's Court should stand by yesterday's decisions\"-is \"a foundation stone of the rule of law.\" Kimble, 576 U.S., at ----, 135 S.Ct., at 2409 (quoting Michigan v. Bay Mills Indian Community, 572" }, { "docid": "22531802", "title": "", "text": "for United States as Amicus Curiae 14-28; Tr. of Oral Arg. 5-21, 32-39, 42-47, 50-60. The majority declines the petitioners' request to overturn precedent-and rightly so: This Court does not have anything close to the special justification necessary to overturn Abood. Still, the majority cannot restrain itself from providing a critique of that decision, suggesting that it might have resolved the case differently in the first instance. That dicta is off-base: Abood corresponds precisely to this Court's overall framework for assessing public employees' First Amendment claims. To accept that framework, while holding Abood at arms-length, is to wish for a sui generis rule, lacking in justification, applying exclusively to union fees. A This Court's view of stare decisis makes plain why the majority cannot-and did not-overturn Abood. That doctrine, we have stated, is a \"foundation stone of the rule of law.\" Michigan v. Bay Mills Indian Community, 572 U.S. ----, ----, 134 S.Ct. 2024, 2036, 188 L.Ed.2d 1071 (2014). It \"promotes the evenhanded, predictable, and consistent development of legal principles [and] fosters reliance on judicial decisions.\" Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). As important, it \"contributes to the actual and perceived integrity of the judicial process,\" ibid., by ensuring that decisions are \"founded in the law rather than in the proclivities of individuals,\" Vasquez v. Hillery, 474 U.S. 254, 265, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). For all those reasons, this Court has always held that \"any departure\" from precedent \"demands special justification.\" Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). And Abood is not just any precedent: It is entrenched in a way not many decisions are. Over nearly four decades, we have cited Abood favorably numerous times, and we have repeatedly affirmed and applied its core distinction between the costs of collective bargaining (which the government can demand its employees share) and those of political activities (which it cannot). See, e.g.,Locke v. Karass, 555 U.S. 207, 213-214, 129 S.Ct. 798, 172 L.Ed.2d 552 (2009); Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 519," }, { "docid": "9278316", "title": "", "text": "U.S. 683, 702, 68 S.Ct. 793, 92 L.Ed. 1010 (1948) (same). That sort of mixing is endemic in agencies, and has been \"since the beginning of the Republic.\" Arlington , 569 U.S. at 304-305, n. 4, 133 S.Ct. 1863. It does not violate the separation of powers, we have explained, because even when agency \"activities take 'legislative' and 'judicial' forms,\" they continue to be \"exercises of[ ] the 'executive Power' \"-or otherwise said, ways of executing a statutory plan. Ibid. (quoting U. S. Const., Art. II, § 1, cl. 1 ). So Kisor's last argument to dispatch Auer deference fails as roundly as the rest. B If all that were not enough, stare decisis cuts strongly against Kisor's position. \"Overruling precedent is never a small matter.\" Kimble v. Marvel Entertainment, LLC , 576 U. S. ----, ----, 135 S.Ct. 2401, 2409, 192 L.Ed.2d 463 (2015). Adherence to precedent is \"a foundation stone of the rule of law.\" Michigan v. Bay Mills Indian Community , 572 U.S. 782, 798, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014). \"[I]t promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.\" Payne v. Tennessee , 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). To be sure, stare decisis is \"not an inexorable command.\" Id., at 828, 111 S.Ct. 2597. But any departure from the doctrine demands \"special justification\"-something more than \"an argument that the precedent was wrongly decided.\" Halliburton Co. v. Erica P. John Fund, Inc. , 573 U.S. 258, 266, 134 S.Ct. 2398, 189 L.Ed.2d 339 (2014). And that is even more than usually so in the circumstances here. First, Kisor asks us to overrule not a single case, but a \"long line of precedents\"-each one reaffirming the rest and going back 75 years or more. Bay Mills , 572 U.S. at 798, 134 S.Ct. 2024 ; see nn. 2, 3, supra . This Court alone has applied Auer or Seminole Rock in dozens of cases, and lower courts have done so thousands of" }, { "docid": "22493543", "title": "", "text": "at 477, 115 S.Ct. 1003 (holding federal-employee honoraria ban unconstitutional). VI For the reasons given above, we conclude that public-sector agency-shop arrangements violate the First Amendment, and Abood erred in concluding otherwise. There remains the question whether stare decisis nonetheless counsels against overruling Abood . It does not. \"Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.\" Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). We will not overturn a past decision unless there are strong grounds for doing so. United States v. International Business Machines Corp., 517 U.S. 843, 855-856, 116 S.Ct. 1793, 135 L.Ed.2d 124 (1996) ; Citizens United, 558 U.S., at 377, 130 S.Ct. 876 (ROBERTS, C.J., concurring). But as we have often recognized, stare decisis is \" 'not an inexorable command.' \" Pearson v. Callahan, 555 U.S. 223, 233, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ; see also Lawrence v. Texas, 539 U.S. 558, 577, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) ; State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) ; Agostini v. Felton, 521 U.S. 203, 235, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) ; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 63, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) ; Payne, supra, at 828, 111 S.Ct. 2597. The doctrine \"is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.\" Agostini, supra, at 235, 117 S.Ct. 1997. And stare decisis applies with perhaps least force of all to decisions that wrongly denied First Amendment rights: \"This Court has not hesitated to overrule decisions offensive to the First Amendment (a fixed star in our constitutional constellation, if there is one).\" Federal Election Comm'n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 500, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (Scalia, J., concurring in part and concurring" }, { "docid": "7850088", "title": "", "text": "Transit suggests that there are additional considerations that compel us to conclude that the factor here “weighs heavily in finding immunity.” Their argument is based on the fact that (1) NJ Transit’s board must present its annual budget to the governor and legislature, (2) the New Jersey governor appoints the entire board, and (3) the transit system’s acquisition of privately owned transportation entities are subject to legislative veto. These arguments were all made in Fitchik’s dissenting opinion. Because the Fitchik majority considered them and remained unpersuaded, we are bound by its conclusion. Accordingly, this factor continues to only “counsel slightly in favor of according immunity to NJT” in light of Fitchik. As demonstrated, NJ Transit’s funding scheme, status under state law, and organizational structure have remained largely unchanged over the last twenty-seven years. NJ Transit’s arguments here were fully considered and resolved in Fitchik-, as a result, principles of collateral estoppel preclude NJ Transit from relitigating them here. II. In light of the principles underlying the doctrines of stare decisis and collateral estoppel, it has been the tradition of this court to refrain from overturning our precedents “lightly.” Today we depart from that tradition. Because I believe we do so unjustifiably* I respectfully dissent. . 873 F.2d 655 (3d Cir. 1989) (en banc). . United States v. Babich, 785 F.2d 415, 417 (3d Cir. 1986) (quoting Vasquez v. Hillery, 474 U.S. 254, 266, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986)); see also Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (\"Stare decisis'is the preferred course because it promotes- the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”). . 3d Cir. I.O.P. 9.1 (2015). . 3d Cir. I.O.P. 9.1. . See Maj. Op. 513-14; Mennen Co. v. Atl. Mut. Ins. Co., 147 F.3d 287, 294 n.9 (3d Cir. 1998). . Maliandi v. Montclair State Univ., 845 F.3d 77, 83 (3d Cir. 2016). . Id. at 84 (citing Fitchik, 873 F.2d at 664). . Fitchik, 873 F.2d at 664." }, { "docid": "19643481", "title": "", "text": "only support for this conclusion is Marvel's self-serving and unsupported assertion that some contracts might not specify an end date for royalties because the parties expect Brulotte to supply the default rule. To its credit, the Court stops short of endorsing this unlikely prediction, saying only that \"uncertainty on this score cuts in Marvel's direction.\" Ante, at 2410. But there is no real uncertainty. \"[W]e do not know\" if Marvel's assertion is correct because Marvel has provided no evidence to support it. Ibid. And there are reasons to believe that, if parties actually relied on Brulotte to supply a default rule, courts would enforce the contracts as the parties expected. See, e.g., 27 R. Lord, Williston on Contracts § 70:124 (4th ed. 2003). What we know for sure, however, is that Brulotte has upended the parties' expectations here and in many other cases. See, e.g., Scheiber, 293 F.3d, at 1016 ; Boggild v. Kenner Products, 853 F.2d 465, 466-467 (C.A.6 1988) ; Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1367, 1373 (C.A.11 1983). These confirmed problems with retaining Brulotte clearly outweigh Marvel's hypothetical fears. II In the end, Brulotte 's only virtue is that we decided it. But that does not render it invincible. Stare decisis is important to the rule of law, but so are correct judicial decisions. Adherence to prior decisions \" 'promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.' \" Pearson v. Callahan, 555 U.S. 223, 233, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) ). But stare decisis is not an \"inexorable command.\" Payne, supra, at 828, 111 S.Ct. 2597 ; Washington v. W.C. Dawson & Co., 264 U.S. 219, 238, 44 S.Ct. 302, 68 L.Ed. 646 (1924) (Brandeis, J., dissenting). \"Revisiting precedent is particularly appropriate where, as here, a departure would not upset expectations, the precedent consists of a judge-made rule ..., and experience has pointed up the precedent's shortcomings.\" Pearson," }, { "docid": "6461106", "title": "", "text": "(clear error review of board’s factual finding of anticipation); In re Caveney, 761 F.2d 671, 674, 226 USPQ 1, 3 (Fed.Cir.1985) (clear error review of on-sale factual findings of Board of Appeals); In re Wilder, 736 F.2d 1516, 1520, 222 USPQ 369, 372 (Fed.Cir.1984) (clear error review of Board of Appeal’s finding of inadequate description); In re De Blauwe, 736 F.2d 699, 703, 222 USPQ 191, 195 (Fed.Cir.1984) (first opinion of this court indicating that the clearly erroneous standard is applied to Board of Appeal fact finding). From this brief historical survey, we see that no patent statute speaks explicitly to the standard to be used when reviewing decisions of the board. But the common law recognized several standards prior to 1947, including clear error and its close cousins. Thus, we conclude that our more searching clear error standard of review is an “additional requirement” that was “recognized” in our jurisprudence before 1947, which we therefore continue to apply under the exception in section 559. IV. Our decision is buttressed by the principle of stare decisis. Courts do not set aside long-standing practices absent a substantial reason. See Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 2310, 81 L.Ed.2d 164 (1984) (“[A]ny departure from the doctrine of stare decisis demands special justification.”). See generally 18 Moore’s Federal Practice § 134.06[l][a] (3d ed.1997). The principle of stare decisis is integral to our jurisprudence “because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991). Stare decisis, moreover, has “special force in the area of statutory interpretation, for here .. .the legislative power is implicated, and Congress remains free to alter what we have done.” Patterson v. McLean Credit Union, 491 U.S. 164, 172-73, 109 S.Ct. 2363, 2370, 105 L.Ed.2d 132 (1989). In Patterson, the Court provided guidance about when prior decisions may be overruled: In cases where statutory precedents have been overruled, the primary reason for" }, { "docid": "23673494", "title": "", "text": "S.Ct. 1384 (citation and internal quotation marks omitted). Despite being urged to do so by both parties, the Patent and Trademark Office, and multiple amici, the majority refuses to overturn Cybor. The majority rests its judgment primarily on the principles of stare decisis. It asserts that our fifteen years of experience with Cybor teach that our continued de novo review of all claim construction determinations is needed to assure greater “reliability of outcome” and “interjurisdictional uniformity.” Maj. Op. at 1280, 1281. Considerations of stare decisis, however, do not justify adhering to precedent that misapprehends the Supreme Court’s guidance, contravenes the Federal Rules of Civil Procedure, and adds considerable uncertainty and expense to patent litigation. II. Stare decisis is an important part of our jurisprudence, and departing from our precedent is not something we should do lightly. The doctrine “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). It also serves to guard against “arbitrary discretion.” Hubbard v. United States, 514 U.S. 695, 711, 115 S.Ct. 1754, 131 L.Ed.2d 779 (1995) (citations and internal quotation marks omitted). “Stare decisis is not an inexorable command!, however]; rather it ‘is a principle of policy and not a mechanical formula of adherence to the latest decision.’ ” Payne, 501 U.S. at 828, 111 S.Ct. 2597 (quoting Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 84 L.Ed. 604 (1940)). Its force varies from case to case, moreover — carrying the most weight where reliance interests are at stake, but the least weight where the departure from precedent would not change substantive rights and would “not affect the way in which parties order their affairs.” Pearson v. Callahan, 555 U.S. 223, 233, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); see also Payne, 501 U.S. at 828, 111 S.Ct. 2597. “Revisiting precedent is particularly appropriate where ... a departure would not upset expectations ... and experience has pointed up the precedent’s shortcomings.” Pearson," }, { "docid": "22493610", "title": "", "text": "it believes Abood was wrong. But even if that were true (which it is not), it is not enough. \"Respecting stare decisis means sticking to some wrong decisions.\" Kimble v. Marvel Entertainment, LLC, 576 U.S. ----, ----, 135 S.Ct. 2401, 2409, 192 L.Ed.2d 463 (2015). Any departure from settled precedent (so the Court has often stated) demands a \"special justification-over and above the belief that the precedent was wrongly decided.\" Id., at ----, 135 S.Ct., at 2409 (internal quotation marks omitted); see, e.g., Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). And the majority does not have anything close. To the contrary: all that is \"special\" in this case-especially the massive reliance interests at stake-demands retaining Abood, beyond even the normal precedent. Consider first why these principles about precedent are so important. Stare decisis -\"the idea that today's Court should stand by yesterday's decisions\"-is \"a foundation stone of the rule of law.\" Kimble, 576 U.S., at ----, 135 S.Ct., at 2409 (quoting Michigan v. Bay Mills Indian Community, 572 U.S. ----, ----, 134 S.Ct. 2024, 2036, 188 L.Ed.2d 1071 (2014) ). It \"promotes the evenhanded, predictable, and consistent development\" of legal doctrine. Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). It fosters respect for and reliance on judicial decisions. See ibid. And it \"contributes to the actual and perceived integrity of the judicial process,\" ibid., by ensuring that decisions are \"founded in the law rather than in the proclivities of individuals,\" Vasquez v. Hillery, 474 U.S. 254, 265, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). And Abood is not just any precedent: It is embedded in the law (not to mention, as I'll later address, in the world) in a way not many decisions are. Over four decades, this Court has cited Abood favorably many times, and has affirmed and applied its central distinction between the costs of collective bargaining (which the government can charge to all employees) and those of political activities (which it cannot). See, e.g., Locke v. Karass, 555 U.S. 207, 213-214, 129 S.Ct. 798," } ]

[ { "docid": "18696335", "title": "", "text": "their ad valorem taxes to “the net price of the delivered televisions receivers to unrelated dealers.” Id. at 19. Therefore, the ITA applied the Korean tax rate to the comparable USR i.e., the price to the first unrelated purchaser. Id. at 19-20. The court went on to affirm the ITA’s methodology of determining where in the stream of commerce the Korean authorities applied the ad valorem tax rate in the home market and applying the same tax rate to USP calculated at the same point in the chain of commerce and adding this amount to USE Id. at 18-22. Therefore, since as a matter of law the ITA has incorrectly adjusted USP for the Japanese VAT, and since there is no just reason for delay in the entry of final judgment on this issue, this Court is entering final judgment on this issue ordering the ITA to apply the Japanese VAT rate to USP calculated at the same point in the stream of commerce where the Japanese VAT is applied for home market sales and add the resulting amount to USE Since this issue has been dealt with in this opinion, this Court finds that Federal-Mogul’s motion for a finding of contempt of court and for the imposition of sanctions is moot. However, defendant is warned that the ITA’s repeated failure to comply with the remand orders of this Court will result in a finding of contempt and assessment of costs against the government. See, e.g., NSK Ltd. v. United States, 17 CIT 251, 254, (1993). 2. Adjustment to COS for Delayed Payment: Federal-Mogul also challenges the ITA’s explanation of why delayed payment of home market sales expenses should not be factored into the calculation of COS adjustments to FMV Federal-Mogul’s Comments at 22-36. Torrington takes no position in regard to the ITA’s failure to factor delayed payment into the calculation of COS adjustments to FMV Torrington’s Memorandum at 11. Defendant states that the analysis presented in the Remand Results contains incorrect information and should be remanded back to the ITA for correction. Defendant’s Comments at 10-11. This Court agrees" } ]

[ { "docid": "18625605", "title": "", "text": "which found that the ITA’s new VAT methodology is not in accordance with law. Defendant-intervenors SKF and NTN Bearing Corporation of America and NTN Kugellagerfabrik (Deutschland) GmbH (“NTN”) essentially support defendant’s arguments on this issue. Comments of SKF Regarding Final Remand Results (“SKF’s Comments”) at 1-3; NTN’s Comments on the Remand Determination of the United States Depart- merit of Commerce, International Trade Administration (“NTN’s Comments”) at 2-4. SKF emphasizes that unless the VAT rate is applied to comparable FMV and USP tax bases, application of the VAT rate to USP may result in the creation of dumping margins, a result which SKF contends cannot be allowed pursuant to the Court of Appeals for the Federal Circuit’s decision in Zenith, 988 F.2d at 1582. Response of SKF to Comments of Federal-Mogul Regarding Final Results of Redetermination (“SKF’s Response”) at 2-7. This Court remanded this issue for the ITA “to examine the administrative record to determine the exact monetary amount of VAT paid on each sale in the home market and make sure that the amount added to the comparable USP sale pursuant to 19 U.S.C. § 1677a(d)(1)(C) is less than or equal to this amount, to add the full amount of VAT paid in the home market to FMV without adjustment* * *. ” Federal-Mogul, 17 CIT at 533, 824 F. Supp. at 237. Nowhere did this Court discuss changing the ITA’s method of adding an amount to USP pursuant to 19 U.S.C. § 1677a(d)(1)(C) to account for the German VAT. ITA was only to “make sure that the amount added to the comparable USP sale pursuant to 19 U.S.C. § 1677a(d)(1)(C) is less than or equal to [the amount added to FMV] * * *.” Federal-Mogul, 17 CIT at 533, 824 F. Supp. at 237. In fact, this Court implicitly affirmed the ITA’s methodology for adjusting USP in its discussion of the tax base issue in Federal-Mogul Corp. v. United States, 17 CIT 88, 99-100, 813 F. Supp. 856, 865-66 (1993). This Court has fully addressed defendant and defendant-intervenor’s arguments on this issue and adheres to its decision in Federal-Mogul," }, { "docid": "18696348", "title": "", "text": "remanded back to the ITA to clarify its explanation of why delayed payment of home market sales expenses should not be factored into the calculation of COS adjustments to FMV and to correctly report NSK’s weighted average dumping margin for ball bearings. In addition, since as a matter of law the ITA has incorrectly adjusted USP for the Japanese VAT, and since there is no just reason for delay in the entry of final judgment on this issue, this Court is entering final judgment on this issue ordering the ITA to apply the Japanese VAT rate to USP calculated at the same point in the stream of commerce as where the Japanese VAT is applied for home market sales and add the resulting amount to USE ITA’s denial of an adjustment to FMV for Koyo, NSK and NTN’s PSPAs and rebates is affirmed. The second remand results are due within thirty (30) days of the date this opinion is entered. Comments or responses by the parties are due within thirty (30) days thereafter. Any rebuttal comments are due within fifteen (15) days of the date responses or comments are due. 19 U.S.C. § 1677a(d)(1)(C) states: (d) Adjustments to purchase price and exporter’s sales price The purchase price and the exporter’s sales price shall be adjusted by being— (1) increased by— ******* (C) the amount of any taxes imposed in the country of exportation directly upon the exported merchandise or components thereof, which have been rebated, or which have not been collected, by reason of the exportation of the merchandise to the United States, but only to the extent that such taxes are added to or included in the price of such or similar merchandise when sold in the country of exportation; * * *. The multiplier effect can be seen in the following example taken from Zenith Elecs. Corp. v. United States, 10 CIT 268, 273 n.9, 633 F. Supp. 1382, 1386 n.9 (1986), appeal dismissed, 875 F.2d 291 (Fed. Cir. 1989): Suppose the pre-tax home market price for a certain model of Japanese television is equal to $100, while" }, { "docid": "18625614", "title": "", "text": "the burden is worth undertaking because of more soundly based results. Daewoo, Nos. 92-1558, -1559, -1560, -1561, -1562 at 16-18 (emphasis in original). This Court finds that the same concerns apply to attempting to quantify COS adjustments to FMV The statute, legislative history, the ITA’s regulations and the Daewoo decision all lead this Court to the conclusion that the ITA is not required to reach the level of precision in quantifying COS adjustments which Federal-Mogul believes is required. Therefore, this Court finds that the ITA is justified in using a respondent’s financial records to quantify COS adjustments to FMV and is not required to factor in the effects of delayed payment of home market selling expenses on these COS adjustments. Conclusion In accordance with the foregoing opinion, since as a matter of law the ITA has incorrectly adjusted USP for the German VAT, and since there is no just reason for delay in the entry of final judgment on this issue, this Court is entering final judgment on this issue ordering the ITA to apply the German VAT rate to USP calculated at the same point in the stream of commerce as where the German VAT is applied for home market sales and add the resulting amount to USP ITA’s decisions not to factor the delayed payment of home market selling expenses into COS adjustments to FMV reinstatement of the “all others” cash deposit rate from the LTFV investigation for entries made between May 1, 1992 and June 23, 1992, which have not as yet become subject to a subsequent administrative review and correction of errors in the final margin computer programs for INA and SKF are affirmed. This case is dismissed." }, { "docid": "18625607", "title": "", "text": "17 CIT at 1095-98, 834 F. Supp. at 1394-96, Slip Op. 93-194 at 11-14. Therefore, since as a matter of law the ITA has incorrectly adjusted USP for the German VAT, and since there is no just reason for delay in the entry of final judgment on this issue, this Court is entering final judgment on this issue ordering the ITA to apply the German VAT rate to USP calculated at the same point in the stream of commerce as where the German VAT is applied for home market sales and add the resulting amount to USP 2. Adjustment to COS for Delayed Payment: Federal-Mogul also challenges the ITA’s explanation of why delayed payment of home market sales expenses should not be factored into the calculation of COS adjustments to FMV Federal-Mogul’s Comments at 23-31. In its Remand Results, the ITA explained why it does not adjust COS adjustments to FMV for delayed payment of expenses. First, ITA argues that 19 U.S.C.§ 1677b(a)(4)(B) (1988) grants the ITA broad authority in determining and allowing adjustments for circumstances of sale, but that Congress expressed concern that any adjustment which the ITA allows be “reasonably identifiable, quantifiable, and directly related to the sales under consideration and [allowed] if there is clear and reason able evidence of their existence and amount.” Remand Results at 5 (quoting H.R. Rep. No. 317, 96th Cong., 1st Sess. 76 (1979)). Second, the ITA argues that its regulations implement the statutory intent by stating that the ITA will make a reasonable allowance for a difference in circumstance of sale if the price differential is wholly or partly due to such a difference of sale. 19 C.F.R. § 353.56(a) (1991). ITA’s regulations also state that the ITA will allow a COS adjustment “for differences in selling costs (such as advertising) incurred by the producer or reseller but normally only to the extent that such costs are assumed by the producer or reseller on behalf of the purchaser from that producer or reseller.” 19 C.F.R. § 353.56(a)(2) (1991). Finally, in regard to quantifying a COS adjustment, the ITA’s regulations state: In" }, { "docid": "18625603", "title": "", "text": "Comments”) at 3-23. In its Remand Results, as instructed by this Court, the ITA added the amount of VAT paid on each sale in the home market to FMV without making a COS adjustment to this amount. In addition and on its own initiative, the ITA added the exact same amount to USP instead of following its usual practice of applying the ad valorem VAT rate to the net USP after all adjustments had been made and adding this amount to USE Remand Results at 2-5; see Final Results, 56 Fed. Reg. at 31,729. ITA’s rationale for its new approach is based on its interpretation of the United States Court of Appeals for the Federal Circuit’s recent decision on the VAT issue in Zenith Elecs. Corp. v. United States, 988 F.2d 1573, 1580-82 (Fed. Cir. 1993). Remand Results at 2. ITA implemented its stated methodology only for respondents whose dumping margins were being recalculated on remand for some other reason and for respondents who did not participate in the Second Administrative Review because the ITA’s new methodology only changes cash deposit rates which are no longer in effect for all respondents. Id. at 4-5. Defendant argues that the ITA’s new VAT methodology is responsive to this Court’s remand order. Specifically, the defendant argues that this new methodology adds the full amount of VAT to FMV ensures that the tax adjustment made to USP is not greater than the amount of VAT added to FMV and does not make a COS adjustment to the amount of VAT added to FMV Remand Results at 2-5; Defendant’s Rebuttal to Federal-Mogul Corporation’s Comments Concerning Defendant’s Final Results of Redetermination Pursuant to Court Order (“Defendant’s Comments”) at 2. For a detailed discussion of Federal-Mogul and defendant’s arguments on this issue, see this Court’s decision in Federal-Mogul Corp. v. United States, 17 CIT 1093, 1095-98, 834 F. Supp. 1391, 1394-96 (1993). Defendant requests this Court to reconsider its recent decisions in Federal-Mogul Corp. v. United States, 17 CIT 1093, 834 F. Supp. 1391, Torrington Co. v. United States, 17 CIT 1113, 834 F. Supp 1384 (1993)," }, { "docid": "18667958", "title": "", "text": "Federal-Mogul’s Motion for Judgment on the Agency Record (“SKF’s Opposition”) at 5-10; Response Brief of Defendant-intervenor NTN Bearing Corporation of America and NTN Kugellagerfabrik (Deutschland) GmbH (“NTN’s Response”) at 9-23; Memorandum of Defendant-intervenor GMN Georg Muller Nürnberg AG in Opposition to Plaintiff’s Motion for Judgment Upon the Agency Record (‘‘GMN’sMemorandum”) at 8-12; Memorandum of Defendant-intervenor FAG Kugelfischer Georg Schafer KGaA in Opposition to Plaintiff’s Motion for Judgment Upon the Agency Record (“FAG’s Memorandum”) at 8-12. For a more detailed discussion of Federal-Mogul and defendant’s arguments on these issues, see this Court’s decision in Federal-Mogul Corp. v. United States, 17 CIT 88, 92-100, 813 F. Supp. 856 (1993). This Court has fully addressed these arguments and adheres to its decision on these issues in Federal-Mogul, 17 CIT at 100, 813 F. Supp. 856 (1993). This Court finds that the ITA’s determination that 19 U.S.C. § 1677a(d)(l)(C) does not require the ITA to conduct an analysis of tax incidence in the German antifriction bearings market and that the ITA’s use of the net USP including profit as the tax base is reasonable and supported by law. In addition, this Court remands this case to the ITA to allow the ITA to add the full amount of VAT paid on home market sales to FMV without adjustment and for the ITA to examine the administrative record to determine the exact monetary amount of VAT paid on each sale in the home market and make sure that the amount added to the comparable USP sale is less than or equal to this amount in conformity with this Court’s opinion in Federal-Mogul, 17 CIT at 108, 813 F. Supp. 856 (1993). 2. Calculation of Cash Deposit Rates: In this administrative review, the ITA used two different methodologies for the actual calculation of dumping margins in cases where ESP sales were used: one for assessing duties on entries covered by the review, and the other for setting the cash deposit future entries of the subject merchandise. Final Results, 56 Fed. Reg. at 31,693-95, 31,698-702. To calculate the assessment rate for ESP sales, the ITA “divide[d] the" }, { "docid": "18671847", "title": "", "text": "Opinion Tsoucalas, Judge: Plaintiff, The Torrington Company (“Torring-ton”), commenced this action to challenge certain aspects of the Department of Commerce, International Trade Administration’s (“ITA”) final results in the first administrative review of imports of antifriction bearings from Thailand. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Thailand; Final Results of An-tidumping Duty Administrative Review, 56 Fed. Reg. 31,765 (1991). Substantive issues raised by the parties in the underlying administrative proceeding were addressed by the ITA in the issues appendix to Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany; Final Results of Antidumping Duty Administrative Review (“Issues Appendix”), 56 Fed. Reg. 31,692 (1991). Background In Torrington Co. v. United States, 17 CIT 541, 545, 823 F. Supp. 945, 949 (1993), this Court remanded this case “to the ITA to add the full amount of [indirect taxes] paid on each sale in the home market to [foreign market value] without adjustment.” On July 22, 1993, the ITA filed with this Court its Final Results of Redetermination Pursuant to Court Remand, The Torrington Company v. United States Slip Op. 93-98 (June 8, 1993) (“Remand Results”). Since there was no value added tax (“VAT”) in Thailand at the time of the underlying administrative review but there were business and municipal taxes which were not collected by reason of the export of the subject merchandise to the U.S., in its Remand Results the ITA stated that it would add the amount of these indirect taxes to foreign market value (“FMV”) for sales in the home market without adjustment and also added the exact same amount to United States price (“USP”). Remand Results at 3. ITA did not implement its stated methodology because it would only change cash deposit rates which are no longer in effect. Id. at 3-4. Discussion ITA’s final results filed pursuant to a remand will be sustained un-less that determination is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B) (1988). Substantial evidence is “relevant evidence as a reasonable mind might accept" }, { "docid": "18625604", "title": "", "text": "new methodology only changes cash deposit rates which are no longer in effect for all respondents. Id. at 4-5. Defendant argues that the ITA’s new VAT methodology is responsive to this Court’s remand order. Specifically, the defendant argues that this new methodology adds the full amount of VAT to FMV ensures that the tax adjustment made to USP is not greater than the amount of VAT added to FMV and does not make a COS adjustment to the amount of VAT added to FMV Remand Results at 2-5; Defendant’s Rebuttal to Federal-Mogul Corporation’s Comments Concerning Defendant’s Final Results of Redetermination Pursuant to Court Order (“Defendant’s Comments”) at 2. For a detailed discussion of Federal-Mogul and defendant’s arguments on this issue, see this Court’s decision in Federal-Mogul Corp. v. United States, 17 CIT 1093, 1095-98, 834 F. Supp. 1391, 1394-96 (1993). Defendant requests this Court to reconsider its recent decisions in Federal-Mogul Corp. v. United States, 17 CIT 1093, 834 F. Supp. 1391, Torrington Co. v. United States, 17 CIT 1113, 834 F. Supp 1384 (1993), which found that the ITA’s new VAT methodology is not in accordance with law. Defendant-intervenors SKF and NTN Bearing Corporation of America and NTN Kugellagerfabrik (Deutschland) GmbH (“NTN”) essentially support defendant’s arguments on this issue. Comments of SKF Regarding Final Remand Results (“SKF’s Comments”) at 1-3; NTN’s Comments on the Remand Determination of the United States Depart- merit of Commerce, International Trade Administration (“NTN’s Comments”) at 2-4. SKF emphasizes that unless the VAT rate is applied to comparable FMV and USP tax bases, application of the VAT rate to USP may result in the creation of dumping margins, a result which SKF contends cannot be allowed pursuant to the Court of Appeals for the Federal Circuit’s decision in Zenith, 988 F.2d at 1582. Response of SKF to Comments of Federal-Mogul Regarding Final Results of Redetermination (“SKF’s Response”) at 2-7. This Court remanded this issue for the ITA “to examine the administrative record to determine the exact monetary amount of VAT paid on each sale in the home market and make sure that the amount added" }, { "docid": "18696331", "title": "", "text": "market sales. Federal-Mogul also points out that, until now, the ITA has consistently interpreted the statute to require the application of the ad valorem VAT rate to net USP to derive the amount that is added to USE Federal-Mogul states: First, Commerce never adjusts USP by a rate of an ad valorem tax. It adjusts USP by an amount of tax — an amount which is arrived at by applying a rate to a tax base. The amount of tax used in the adjustment to USP has been the statutory amount of tax forgiven on exportation. Federal-Mogul’s Comments at 16 (emphasis in original). This Court remanded this issue for the ITA “to examine the administrative record to determine the exact monetary amount of VAT paid on each sale in the home market and make sure that the amount added to the comparable USP sale pursuant to 19 U.S.C. § 1677a(d)(1)(C) is less than or equal to this amount, to add the full amount of VAT paid in the home market to FMV without adjustment* * *.\" Federal-Mogul, 17 CIT at 108, 813 F. Supp. at 873. Nowhere did this Court discuss changing the ITA’s method of adding an amount to USP pursuant to 19 U.S.C. § 1677a(d)(1)(C) to account for the Japanese VAT. ITA was only to “make sure that the amount added to the comparable USP sale pursuant to 19 U.S.C. § 1677a(d)(1)(C) is less than or equal to [the amount added to FMV]* * *.” Id. Infact, this Court implicitly affirmed the ITA’s methodology for adjusting USP in its discussion of the tax base issue in this case. 17 CIT at 100, 813 F. Supp. at 865-66. Defendant relies on Zenith to support its position. Although the ITA’s Remand Results do not explicitly cite to footnote 4, this is the ITA’s primary support for its mistaken belief that its new VAT methodology is not in conflict with the body of the Zenith opinion and the language of the statute. Defendant’s Comments at 6-10. However, this Court finds that footnote 4 is clearly at odds with the body of" }, { "docid": "18696323", "title": "", "text": "June 28, 1993, the ITA filed with this Court its Final Results of Redetermination Pursuant to Court Remand, Federal-Mogul Corporation v. United States Slip Op. 93-17 (February 4, 1993) and The Torrington Company v. United States Slip Op. 93-44 (March 29, 1993) (“Remand Results”). In its Remand Results, the ITA: (1) added to foreign market value (“FMV”) the amount of value added tax (“VAT”) paid on sales of the subject merchandise in the home market without adjustment and also added the exact same amount to United States price (“USP”); explained in greater detail why savings realized from delayed payment of home market sales expenses should not be factored into the calculation of circumstance of sale (“COS”) adjustments to FMV; and disallowed adjustments for post sale price adjustments (“PSPAs”) for Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. (“Koyo”), NSKLtd. and NSK Corporation (“NSK”), and NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation and NTN Corporation (“NTN”). Remand Results at 3-15. Discussion ITA’s final results filed pursuant to a remand will be sustained unless that determination is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B) (1988). Substantial evidence is “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Alhambra Foundry Co. v. United States, 12 CIT 343, 345, 685 F. Supp. 1252, 1255 (1988). 1. Yalue Added Tax: Federal-Mogul and Torrington challenge the ITA’s treatment of the Japanese VAT. Federal-Mogul Corporation’s Comments Concerning Defendant’s Final Results of Redetermination Pursuant to Court Remand (“Federal-Mogul’s Comments”) at 3-22; Memorandum of The Torrington Company in Support of its Motion for a Second Remand (“Torrington’s Memorandum”) at 2-10. In addition, Federal-Mogul has filed a motion for an order holding certain Department of Commerce officials in contempt of court and for the imposition of sanctions, arguing that the ITA has willfully disobeyed the orders of this Court by pursuing a goal of tax neutrality in its treatment of VATs. Motion of Plaintiff Federal-Mogul Corporation for an Order Holding" }, { "docid": "18625606", "title": "", "text": "to the comparable USP sale pursuant to 19 U.S.C. § 1677a(d)(1)(C) is less than or equal to this amount, to add the full amount of VAT paid in the home market to FMV without adjustment* * *. ” Federal-Mogul, 17 CIT at 533, 824 F. Supp. at 237. Nowhere did this Court discuss changing the ITA’s method of adding an amount to USP pursuant to 19 U.S.C. § 1677a(d)(1)(C) to account for the German VAT. ITA was only to “make sure that the amount added to the comparable USP sale pursuant to 19 U.S.C. § 1677a(d)(1)(C) is less than or equal to [the amount added to FMV] * * *.” Federal-Mogul, 17 CIT at 533, 824 F. Supp. at 237. In fact, this Court implicitly affirmed the ITA’s methodology for adjusting USP in its discussion of the tax base issue in Federal-Mogul Corp. v. United States, 17 CIT 88, 99-100, 813 F. Supp. 856, 865-66 (1993). This Court has fully addressed defendant and defendant-intervenor’s arguments on this issue and adheres to its decision in Federal-Mogul, 17 CIT at 1095-98, 834 F. Supp. at 1394-96, Slip Op. 93-194 at 11-14. Therefore, since as a matter of law the ITA has incorrectly adjusted USP for the German VAT, and since there is no just reason for delay in the entry of final judgment on this issue, this Court is entering final judgment on this issue ordering the ITA to apply the German VAT rate to USP calculated at the same point in the stream of commerce as where the German VAT is applied for home market sales and add the resulting amount to USP 2. Adjustment to COS for Delayed Payment: Federal-Mogul also challenges the ITA’s explanation of why delayed payment of home market sales expenses should not be factored into the calculation of COS adjustments to FMV Federal-Mogul’s Comments at 23-31. In its Remand Results, the ITA explained why it does not adjust COS adjustments to FMV for delayed payment of expenses. First, ITA argues that 19 U.S.C.§ 1677b(a)(4)(B) (1988) grants the ITA broad authority in determining and allowing adjustments for" }, { "docid": "18696322", "title": "", "text": "added to the comparable [United States price] sale pursuant to 19 U.S.C. § 1677a(d)(1)(C) is less than or equal to this amount, to add the full amount of [value added tax] paid in the home market to [foreign market value] without adjustment and to explain why any savings resulting from deferred payment of sales expenses should or should not be factored into the calculation of each type of [circumstance of sale] adjustment made to [foreign market value] in this review. In Torrington Co. v. United States, 17 CIT 199, 818 F. Supp. 1563, 1580-81 (1993), this Court remanded this case to the ITA to add the full amount of [value added tax] paid on each sale in the home market to [foreign market value] without adjustment and to develop a methodology which removes [post sale price adjustments] and rebates paid on sales of out of scope merchandise from any adjustment made to [foreign market value] for [post sale price adjustments] and rebates, or to deny an adjustment if a viable method cannot be found. On June 28, 1993, the ITA filed with this Court its Final Results of Redetermination Pursuant to Court Remand, Federal-Mogul Corporation v. United States Slip Op. 93-17 (February 4, 1993) and The Torrington Company v. United States Slip Op. 93-44 (March 29, 1993) (“Remand Results”). In its Remand Results, the ITA: (1) added to foreign market value (“FMV”) the amount of value added tax (“VAT”) paid on sales of the subject merchandise in the home market without adjustment and also added the exact same amount to United States price (“USP”); explained in greater detail why savings realized from delayed payment of home market sales expenses should not be factored into the calculation of circumstance of sale (“COS”) adjustments to FMV; and disallowed adjustments for post sale price adjustments (“PSPAs”) for Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. (“Koyo”), NSKLtd. and NSK Corporation (“NSK”), and NTN Bearing Corporation of America, American NTN Bearing Manufacturing Corporation and NTN Corporation (“NTN”). Remand Results at 3-15. Discussion ITA’s final results filed pursuant to a remand will be sustained" }, { "docid": "18625601", "title": "", "text": "payment of sales expenses should or should not be factored into the calculation of each type of [circumstance of sale] adjustment made to [foreign market value] in this review, to reinstate the less-than-fair-value “all others” rate for entries made between May 1, 1992 and June 23, 1992, which have as yet not become subject to a subsequent administrative review, and to correct the computer errors in regard to SKF and INA’s dumping margins. On September 2, 1993, the ITA filed with this Court its Final Results of Redetermination Pursuant to Court Remand, Federal-Mogul Corporation v. United States Slip Op. 93-96 (June 4, 1993) (“Remand Results ”). In its Remand Results, the ITA: for certain respondents added to foreign market value (“FMV”) the amount of value added tax (“VAT”) paid on sales of the subject merchandise in the home market without adjustment and also added the exact same amount to United States price (“USP”); explained in greater detail why savings realized from delayed payment of home market sales expenses should not be factored into the calculation of circumstance of sale (“COS”) adjustments to FMV; reinstated the less-than-fair-value (“LTFV”) “all others” rate for entries made between May 1, 1992 and June 23, 1992, which have as yet not become subject to a subsequent administrative review; and corrected errors in the final margin computer programs for SKF USA Inc. and SKF GmbH (“SKF”) and INA Walzlager Schaeffler KG and INA Bearing Company, Inc. (“INA”). Remand Results at 2-13. Discussion ITA’s final results filed pursuant to a remand will be sustained un-less that determination is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B) (1988). Substantial evidence is “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Alhambra Foundry Co. v. United States, 12 CIT 343, 345, 685 F. Supp. 1252, 1255 (1988). 1. Value Added Tax: Federal-Mogul challenges the ITA’s treatment of the German VAT. Federal-Mogul Corporation’s Comments Concerning Defendant’s Final Results of Redetermination Pursuant to Court Remand (“Federal-Mogul’s" }, { "docid": "18696324", "title": "", "text": "unless that determination is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B) (1988). Substantial evidence is “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Alhambra Foundry Co. v. United States, 12 CIT 343, 345, 685 F. Supp. 1252, 1255 (1988). 1. Yalue Added Tax: Federal-Mogul and Torrington challenge the ITA’s treatment of the Japanese VAT. Federal-Mogul Corporation’s Comments Concerning Defendant’s Final Results of Redetermination Pursuant to Court Remand (“Federal-Mogul’s Comments”) at 3-22; Memorandum of The Torrington Company in Support of its Motion for a Second Remand (“Torrington’s Memorandum”) at 2-10. In addition, Federal-Mogul has filed a motion for an order holding certain Department of Commerce officials in contempt of court and for the imposition of sanctions, arguing that the ITA has willfully disobeyed the orders of this Court by pursuing a goal of tax neutrality in its treatment of VATs. Motion of Plaintiff Federal-Mogul Corporation for an Order Holding Certain Commerce Department Officials in Contempt of Court and Imposing Sanctions. Torrington takes no position on Federal-Mogul’s motion for contempt of court and sanctions. Response of The Torrington Company to Federal-Mogul’s Motion for Sanctions. In its Remand Results, as instructed by this Court, the ITA added the amount of VAT paid on each sale in the home market without making a COS adjustment to this amount. In addition and on its own initiative, the ITA added the exact same amount to USP instead of following its usual practice of applying the ad valorem VAT rate to the net USP after all adjustments had been made and adding this amount to USP Remand Results at 3; see Issues Appendix, 56 Fed. Reg. at 31,729. ITA’s rationale for its new approach is based on its interpretation of the United States Court of Appeals for the Federal Circuit’s recent opinion on the VAT issue in Zenith Elecs. Corp. v. United States, 988 F.2d 1573, 1580-82 (1993). Remand Results at 3. Defendant argues that the ITA’s new VAT methodology" }, { "docid": "18667972", "title": "", "text": "Margins: Federal-Mogul alleges that the ITA committed three inadvertent computer programming errors: (1) failure to deduct the costs of additional packing materials and additional packing labor incurred in the United States for SKF’s exporter’s sales price transactions, (2) failure to use revised total general expenses when calculating INA’s home market cost of production, and (3) failure to include profit and packing costs in calculating INA’s constructed value. Federal-Mogul’s Brief at 73-76. Defendant agrees with Federal-Mogul that the ITA did commit the alleged errors and requests this Court to remand these issues to the ITA for correction when the Court remands this case for final disposition. Defendant’s Memorandum at 92-93. SKF has no objection to a remand for correction of the failure to deduct the costs of additional packing materials and additional packing labor incurred in the United States for SKF’s exporter’s sales price transactions. SKF’s Opposition at 29. Since this Court is remanding this case to the ITA to correct other errors in the Final Results, there is no reason to delay remand in regard to these computer errors. Therefore, the Court remands these issues for the ITA to correct the computer programming errors in regard to SKF and INA’s dumping margins. Conclusion In accordance with the foregoing opinion, this case is remanded to the ITA to examine the administrative record to determine the exact monetary amount of VAT paid on each sale in the home market and make sure that the amount added to the comparable USP sale pursuant to 19 U.S.C. § 1677a(d)(1)(C) is less than or equal to this amount, to add the full amount of VAT paid in the home market to FMV without adjustment, to explain why any savings resulting from deferred payment of sales expenses should or should not be factored into the calculation of each type of COS adjustment made to FMV in this review, to rein-state the less-than-fair-value “all others” rate for entries made between May 1, 1992 and June 23, 1992, which have as yet not become subject to a subsequent administrative review, and to correct the computer errors in regard" }, { "docid": "18667954", "title": "", "text": "Opinion Tsoucalas, Judge: Plaintiff, Federal-Mogul Corporation (“Federal-Mogul”), commenced this action to challenge certain aspects of the Department of Commerce, International Trade Administration’s (“ITA”) final results in the first administrative review of imports of antifriction bearings from the Federal Republic of Germany. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany; Final Results of Antidumping Duty Administrative Review (“Final Results”), 56 Fed. Reg. 31,692 (1991). Background On June 11, 1990, the ITA initiated an administrative review of imports of ball bearings, cylindrical roller bearings, spherical plain bearings and parts thereof from the Federal Republic of Germany. Antifriction Bearings Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany, France, Italy, Japan, Romania, Singapore, Sweden, Thailand and the United Kingdom Initiation of Antidumping Administrative Reviews, 55 Fed. Reg. 23,575 (1990). On March 15, 1991, the ITA published its preliminary determination in the administrative review. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from the Federal Republic of Germany; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews, 56 Fed. Reg. 11,200 (1991). On July 11, 1991, the ITA published its Final Results in this proceeding. Final Results, 56 Fed. Reg. 31,692. Federal-Mogul has challenged the following actions by the ITA alleging that these actions were unsupported by substantial evidence on the administrative record and not in accordance with law: the ITA’s (1) use of a methodology for adjusting United States price (“USP”) and Foreign Market Value (“FMV”) for Germany’s value added tax (“VAT”) that failed to measure the tax incidence or “pass through” of the tax to the consumer in the home market, that granted a circumstance of sale (“COS”) adjustment to FMV to achieve tax neutrality, the incorrect calculation of the tax base for U.S. sales and the failure to impose a cap on the VAT adjustment to USP; (2) method of calculating cash deposit rates for estimated duties; (3) failure to adjust home market selling expenses for delayed payment of the expenses; (4) adjustment of constructed value for differences in COS; (5) treatment" }, { "docid": "18696347", "title": "", "text": "proposed methodology would be applicable. The same situation applies to NTN. A.R.R. Confidential Doc. No. 79 at 10. Finally, the ITA’s denial of an adjustment to FMV for PSPAs and rebates was not a use of BIA. Here Koyo, NSK and NTN have not shown that they have met the statutory requirements to receive an adjustment to FMV for their PSPAs and rebates and the ITA correctly denied them such an adjustment. This is not the use of BIA. See 19 U.S.C. § 1677e(c) (1988). Therefore, the ITA’s denial of an adjustment to FMV for Koyo, NSK and NTN’s PSPAs and rebates is affirmed. 4. Clerical Error: NSK alleges that the ITA incorrectly reported the recalculated weighted average dumping margin for NSK’s ball bearings. NSK’s Comments at 1-2. Defendant agrees and asks this Court to remand this issue to the ITA to correct this error. Defendant’s Comments at 17. Therefore, on remand the ITA will correctly report NSK’s weighted average dumping margin for ball bearings. Conclusion In accordance with the foregoing opinion, this case is remanded back to the ITA to clarify its explanation of why delayed payment of home market sales expenses should not be factored into the calculation of COS adjustments to FMV and to correctly report NSK’s weighted average dumping margin for ball bearings. In addition, since as a matter of law the ITA has incorrectly adjusted USP for the Japanese VAT, and since there is no just reason for delay in the entry of final judgment on this issue, this Court is entering final judgment on this issue ordering the ITA to apply the Japanese VAT rate to USP calculated at the same point in the stream of commerce as where the Japanese VAT is applied for home market sales and add the resulting amount to USE ITA’s denial of an adjustment to FMV for Koyo, NSK and NTN’s PSPAs and rebates is affirmed. The second remand results are due within thirty (30) days of the date this opinion is entered. Comments or responses by the parties are due within thirty (30) days thereafter. Any rebuttal" }, { "docid": "18625602", "title": "", "text": "of circumstance of sale (“COS”) adjustments to FMV; reinstated the less-than-fair-value (“LTFV”) “all others” rate for entries made between May 1, 1992 and June 23, 1992, which have as yet not become subject to a subsequent administrative review; and corrected errors in the final margin computer programs for SKF USA Inc. and SKF GmbH (“SKF”) and INA Walzlager Schaeffler KG and INA Bearing Company, Inc. (“INA”). Remand Results at 2-13. Discussion ITA’s final results filed pursuant to a remand will be sustained un-less that determination is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B) (1988). Substantial evidence is “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Alhambra Foundry Co. v. United States, 12 CIT 343, 345, 685 F. Supp. 1252, 1255 (1988). 1. Value Added Tax: Federal-Mogul challenges the ITA’s treatment of the German VAT. Federal-Mogul Corporation’s Comments Concerning Defendant’s Final Results of Redetermination Pursuant to Court Remand (“Federal-Mogul’s Comments”) at 3-23. In its Remand Results, as instructed by this Court, the ITA added the amount of VAT paid on each sale in the home market to FMV without making a COS adjustment to this amount. In addition and on its own initiative, the ITA added the exact same amount to USP instead of following its usual practice of applying the ad valorem VAT rate to the net USP after all adjustments had been made and adding this amount to USE Remand Results at 2-5; see Final Results, 56 Fed. Reg. at 31,729. ITA’s rationale for its new approach is based on its interpretation of the United States Court of Appeals for the Federal Circuit’s recent decision on the VAT issue in Zenith Elecs. Corp. v. United States, 988 F.2d 1573, 1580-82 (Fed. Cir. 1993). Remand Results at 2. ITA implemented its stated methodology only for respondents whose dumping margins were being recalculated on remand for some other reason and for respondents who did not participate in the Second Administrative Review because the ITA’s" }, { "docid": "18625600", "title": "", "text": "Opinion Tsoucalas, Judge: Plaintiff Federal-Mogul Corporation (“Federal-Mogul”) commenced this action to challenge certain aspects of the Department of Commerce, International Trade Administration’s (“ITA”) final results in the first administrative review of imports of antifriction bearings from the Federal Republic of Germany. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany; Final Results of Antidumping Duty Administrative Review (“Final Results”), 56 Fed. Reg. 31,692 (1991). Background In Federal-Mogul Corp. v. United States, 17 CIT 525, 533, 824 F. Supp. 230, 237 (1993), this Court remanded this case to the ITA to examine the administrative record to determine the exact monetary amount of [value added tax] paid on each sale in the home market and make sure that the amount added to the comparable [United States price] sale pursuant to 19 U.S.C. § 1677a(d)(1)(C) is less than or equal to this amount, to add the full amount of [value added tax] paid in the home market to [foreign market value] without adjustment, to explain why any savings resulting from deferred payment of sales expenses should or should not be factored into the calculation of each type of [circumstance of sale] adjustment made to [foreign market value] in this review, to reinstate the less-than-fair-value “all others” rate for entries made between May 1, 1992 and June 23, 1992, which have as yet not become subject to a subsequent administrative review, and to correct the computer errors in regard to SKF and INA’s dumping margins. On September 2, 1993, the ITA filed with this Court its Final Results of Redetermination Pursuant to Court Remand, Federal-Mogul Corporation v. United States Slip Op. 93-96 (June 4, 1993) (“Remand Results ”). In its Remand Results, the ITA: for certain respondents added to foreign market value (“FMV”) the amount of value added tax (“VAT”) paid on sales of the subject merchandise in the home market without adjustment and also added the exact same amount to United States price (“USP”); explained in greater detail why savings realized from delayed payment of home market sales expenses should not be factored into the calculation" }, { "docid": "18696334", "title": "", "text": "the Federal Circuit’s recent decision on the tax base issue in Daewoo Elecs. Co. v. United States, Nos. 92-1558, -1559, -1560, -1561, -1562 (Fed. Cir. Sept. 30, 1993). The court in Daewoo stated that 19 U.S.C. § 1677a(d)(1)(C) mandates a calculation of imputed tax amounts to be added to the USR but does not specify to which USP the Korean taxes are to be applied as the product moves to the consumer. This determination is important because the Korean taxes are not a specific amount, hut instead ad valorem in nature; and it is difficult because the question is a hypothetical. The Korean taxes must be applied to sales of goods at some discrete moment in the stream of commerce with or in the United States, a different market from that in which the taxes should be levied, but are not, because of exportation. Daewoo, Nos. 92-1558, -1559, -1560, -1561, -1562 at 18-19 (emphasis added). In the Daewoo case, the ITA determined that evidence on the administrative record showed that the Korean tax authorities applied their ad valorem taxes to “the net price of the delivered televisions receivers to unrelated dealers.” Id. at 19. Therefore, the ITA applied the Korean tax rate to the comparable USR i.e., the price to the first unrelated purchaser. Id. at 19-20. The court went on to affirm the ITA’s methodology of determining where in the stream of commerce the Korean authorities applied the ad valorem tax rate in the home market and applying the same tax rate to USP calculated at the same point in the chain of commerce and adding this amount to USE Id. at 18-22. Therefore, since as a matter of law the ITA has incorrectly adjusted USP for the Japanese VAT, and since there is no just reason for delay in the entry of final judgment on this issue, this Court is entering final judgment on this issue ordering the ITA to apply the Japanese VAT rate to USP calculated at the same point in the stream of commerce where the Japanese VAT is applied for home market sales and" } ]

[ { "docid": "22240798", "title": "", "text": "he or she would have been in the absence of state intervention.” Schieber v. City of Philadelphia, 320 F.3d 409, 416 (3d Cir.2003). This complement to the DeShaney holding has come to be known in its progeny as the “state-created danger doctrine.” Qur case law establishes the following essential elements of a meritorious “state-created danger” claim: (1) “the harm ultimately caused was foreseeable and fairly direct;” (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that “the plaintiff was a foreseeable victim of the defendant’s acts,” or a “member of a discrete class of persons subjected to the potential harm brought about by the state’s actions,” as opposed to a member of the public in general; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. It is important to stress, for present purposes, that under the fourth element of a state-created danger claim, “[liability under the state-created danger theory is predicated upon the states’ affirmative acts which work to the plaintiffs’ detriments in terms of exposure to danger.” D.R. by L.R. v. Middle Bucks Area Vo. Tech. School, 972 F.2d 1364, 1374 (3d Cir.1992) (en banc) (emphasis supplied); Brown v. Grabowski, 922 F.2d 1097, 1100-01 (3d Cir.1990) (finding that De-Shaney holds “that a state’s failure to take affirmative action to protect a victim from the actions of a third party will not, in the absence of a custodial relationship ... support a civil rights claim”). It is misuse of state authority, rather than a failure to use it, that can violate the Due Process Clause. While we have acknowledged that the line between action and inaction may not always be clear, D.R., 972 F.2d at 1374, we have never found a state-created danger claim to be meritorious without an allegation and subsequent showing that state authority was affirmatively exercised. Contrary to Bright’s suggestion, Kneipp v." } ]

[ { "docid": "22326539", "title": "", "text": "on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). As noted, plaintiff alleged defendants subjected Diane Morse to a dangerous and ultimately fatal situation, in violation of her Fourteenth Amendment right to substantive due process, by allowing a mentally deranged and homicidal third party to have access to the day care center where Diane Morse worked. Although the general rule is that the state has no affirmative obligation to protect its citizens from the violent acts of private individuals, courts have recognized two exceptions to this rule. See, e.g., D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1369-73 (3d Cir.1992) (en banc), cert. denied, 506 U.S. 1079, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993); Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir.1995), cert. denied, — U.S.-, 116 S.Ct. 924, 133 L.Ed.2d 853 (1996). The first of these is commonly known as the “special relationship” exception, and allows a plaintiff to recover “when the state enters into a special relationship with a particular citizen ... [and] fails, under sufficiently culpable circumstances, to protect the health and safety of the citizen to whom it owes an affirmative duty.” D.R., 972 F.2d at 1369; see also Black v. Indiana Area Sch. Dist., 985 F.2d 707, 713 (3d Cir.1993). The second exception is the “state-created danger” theory of liability. The state-created danger theory had it origins in the Supreme Court’s decision in DeShaney v. Winnebago County Dep’t of Social Serv., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). The petitioner in that ease was a young boy who was chronically abused by his father. The county department of social services, after receiving many complaints about the boy’s mistreatment, took several steps to ensure his safety. But despite these efforts, the boy remained in his father’s custody, and was eventually beaten so savagely that he suffered severe brain damage. The boy and his mother sued the department of social services under the “special relationship” theory of 42 U.S.C. § 1983 for their failure to protect the boy from his father. Although the" }, { "docid": "503730", "title": "", "text": "had it chosen to provide them.” DeShaney, 489 U.S. at. 196-97, 109 S.Ct. 998. Thus, our baseline for analysis is that the officers in this case cannot be held liable simply for failing to break down Ms. Schieber’s door. Recognizing as much, the Schiebers have attempted to fit their claim within a narrow exception to the DeShaney rule known as the “state-created danger” exception. That exception only applies when the state has created a harm or renders someone more vulnerable to an existing harm. Id. at 201, 109 S.Ct. 998. Courts have found under this exception that the state may incur an affirmative duty to rescue if it deprives someone of private sources of rescue. See, e.g., Ross v. United States, 910 F.2d 1422 (7th Cir.1990) (finding a constitutional claim was stated where a deputy ordered civilian scuba divers to cease their rescue of a drowning boy, blocked them with his boat, and threatened to arrest them). Judge Stapleton’s opinion applies the four-part state-created danger test we enunciated in Kneipp v. Tedder, 95 F.3d 1199 (3d Cir.1996). I do not disagree with its analysis as far as it goes. Nonetheless, in my view the test for liability must start with D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364 (3d Cir.1992) (en banc), in which we emphasized that the state must have committed an affirmative act before it can be held constitutionally liable under the state-created danger exception. Sitting en banc in D.R., we noted that the genesis of the exception was the Supreme Court’s language in DeShaney that “[wjhile the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them.” Id. at 1373 (quoting DeShaney, 489 U.S. at 201, 109 S.Ct. 998). We went on to consider the development of the exception and observed that “[p]ost-DeSha-ney courts have tracked the quoted Supreme Court’s language by asking whether the state actors involved affirmatively acted to create plaintiffs danger, or to render him or" }, { "docid": "17491035", "title": "", "text": "Phillips, 515 F.3d at 235. In general, this liberty interest does not require the state to affirmatively protect its citizens. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195-96, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). One exception to this general rule is the state-created danger theory, and it is under this theory that the Estate proceeds on its due process claims. To establish a claim under the state-created danger theory, a plaintiff must prove that: (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir.2006) (internal quotation marks and footnotes omitted). The Estate asserts that Appellees — either Mordaga or another employee within the BCPO — disclosed Lagano’s status as a confidential informant to members of organized crime families, and that this disclosure established a state-created danger that resulted in his murder. Mordaga responded that he is entitled to qualified immunity on the state-created danger claims because the Estate failed to establish either a violation of a constitutional Right, or that the constitutional right was clearly established at the time of the alleged violation. The District Court focused on the second prong of the qualified immunity analysis, holding that the constitutional right claimed to have been violated was not clearly established at the time of Lagano’s murder. In reaching this conclusion, the District Court reasoned that because “[t]here are no published cases that extend the state created danger right to confidential informants" }, { "docid": "17426154", "title": "", "text": "Department of Social Services, the Supreme Court explained that “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” Rather, the purpose of the Clause is “to protect the people from the State, not to ensure that the State protects] [the people] from each other.” Applying this principle, the Court held that state social workers did not deprive four-year-old Joshua DeShaney of substantive due process when they failed to remove him from a physically abusive household, despite their ongoing knowledge of suspected abuse by his father. The Court held that, “[a]s a general matter ... a State’s failure to protect an individual against private violence simply does not constitute a viola tion of the Due Process Clause.” It suggested, however, that the result may have been different had the State played a role in creating or enhancing the danger to which Joshua was exposed. Building off that concept, we and other circuits have adopted a “state-created danger” exception to the general rule that the Due Process Clause imposes no duty on states to protect their citizens from private harm. In Bright v. Westmoreland County; we clarified the elements necessary to successfully plead a state-created danger claim: 1. the harm ultimately caused was foreseeable and fairly direct; 2. a' state actor acted with a degree of culpability that shocks the conscience; 3. a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the statels actions, as opposed to a member of the public in general; and 4. a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. For the reasons set forth below, we hold that L.R. has sufficiently alleged all four of these elements and has therefore sufficiently" }, { "docid": "17491034", "title": "", "text": "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. 223, 231, 129 S.Ct. 808, 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)). To resolve a claim of qualified immunity, a court must engage in a two-pronged analysis to decide (1) whether the plaintiff alleged sufficient facts to establish the violation of a constitutional right, and (2)whether the right was “clearly established” at the time of the defendant’s actions. Id. at 232, 129 S.Ct. 808. The Estate’s claim is grounded in the Due Process Clause of the Fourteenth Amendment, which provides that no State shall “deprive any person of life, liberty, or property, without due process of law....” U.S. Const. amend. X IV, § 1. We have recognized that “[i]ndividuals have a constitutional liberty interest in personal bodi,ly integrity that is protected by the Due Process Clause of the Fourteenth Amendment.” Phillips, 515 F.3d at 235. In general, this liberty interest does not require the state to affirmatively protect its citizens. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195-96, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). One exception to this general rule is the state-created danger theory, and it is under this theory that the Estate proceeds on its due process claims. To establish a claim under the state-created danger theory, a plaintiff must prove that: (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the" }, { "docid": "22397122", "title": "", "text": "doctrine, the state may assume responsibility for the safety of an individual for whom it affirmatively creates or enhances a risk of danger. See Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir.1996). We require the following four elements of a meritorious state created danger claim: (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir.2006) (quotations and footnotes omitted). Because we conclude the Kauchers have not alleged conscience-shocking conduct on the part of defendants, their state created danger claim necessarily fails under the second element of this test. Their claim also fails under the fourth element, because they have not alleged defendants acted affirmatively to create a risk of danger that would otherwise not have existed. The fourth element of the state created danger test asks whether a defendant exercised his or her authority to create a foreseeably dangerous situation. In Bright, we emphasized that “[i]t is misuse of state authority, rather than a failure to use it, that can violate the Due Process Clause.” 443 F.3d at 282. But a specific and deliberate exercise of state authority, while necessary to satisfy the fourth element of the test, is not sufficient. There must be a direct causal relationship between the affirmative act of the state and plaintiffs harm. Only then will the affirmative act render the plaintiff “more vulnerable to danger than had the state not acted at all.” Id. at 281; see also Smith" }, { "docid": "23690659", "title": "", "text": "ruling. Because we have not relied on any of the disputed documents, we deny the motion. AMBRO, Circuit Judge, concurring in part. I join wholeheartedly in Judge Garth’s excellent analysis affirming the District Court’s denial of summary judgment to the police officers. While I concur in the judgment as to the EMTs, I write separately to emphasize that, in light of the high threshold for subjecting EMTs to liability on a state action theory, the facts of this case would support liability for the EMTs under a very limited set of circumstances only. Before doing so, I consider the changes to the four-prong test applicable to state-created dangers, set out in Kneipp v. Tedder, 95 F.3d 1199 (3d Cir.1996). I. The Kneipp test The District Court relied on the Kneipp test in its analysis of state-created danger. In so doing, it cited principles that have since been refined, if not superseded altogether. The four elements we identified in Kneipp were: “(1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; [and] (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party’s crime to occur.” Id. at 1208 (citing Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir.1995)). Judge Garth has noted the most important of ■ the recent -modifications to the Kneipp test, which involved its second prong: in light of the Supreme Court’s decision in County of Sacramento v. Lewis, 523 U.S. 833, 845-47, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), a state actor will be liable only for conduct that “shocks the conscience”; it is no longer enough that she or he has acted in “willful disregard” of the plaintiffs safety. Brown v. Pa. Dep’t of Health Emergency Med. Training Inst., 318 F.3d 473, 480 (3d Cir.2003). This modification, however, is not the only one. In Morse v. Lower Merion School District, 132 F.3d 902 (3d Cir.1997), we reconsidered the" }, { "docid": "23033267", "title": "", "text": "to better respond to the kind of bullying that happened here and that appears to be all too pervasive in far too many of today’s schools. See T.K. v. New York City Dep’t of Educ., 779 F.Supp.2d at 297-98. For the reasons we have explained, we cannot fashion a constitutional remedy under the special relationship theory based on the facts alleged in this case. B. State-Created Danger The Morrows alternatively argue that the Defendants had a duty to protect Brittany and Emily because they created or exacerbated a dangerous situation. As we explained above, in Kneipp v. Tedder, 95 F.3d at 1201, we first adopted the state-created danger theory as a way to establish a constitutional violation in suits brought under § 1983. We confirmed that liability may attach where the state acts to create or enhance a danger that deprives the plaintiff of his or her Fourteenth Amendment right to substantive due process. Kneipp, 95 F.3d at 1205. To prevail on this theory, the Morrows must prove the following four elements: 1) the harm ultimately caused was foreseeable and fairly direct; 2) a state actor acted with a degree of culpability that shocks the conscience; 3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and 4)a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir.2006) (citations and internal quotation marks omitted). The Defendants focus on the last prong of the test. They argue that the Morrows have failed to allege any affirmative action by school administrators that made the Morrow children more vulnerable than they would have been had the administrators stood by and done nothing at all. The Morrows" }, { "docid": "15507981", "title": "", "text": "the first or “threshold question” is this: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the [official’s] conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Here, the Walters allege that Mitchell, DeSarro, and Jacobs deprived Michael Walter of his right to substantive due process under the Fourteenth Amendment to the Constitution. The District Court held that the facts, taken in the light most favorable to the Walters, support this claim under the theory of state-created danger. We disagree with the District Court, and on this basis we will hold that qualified immunity is applicable here as to all defendants and events at issue. 1. State-Created Danger The state-created danger doctrine-developed by a number of Circuit Courts of Appeal but not yet formally recognized by the Supreme Court-is an exception to the rule that “the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” DeShaney v. Winnebago County Dep’t of Soc. Serv., 489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). In other words, even where a plaintiff suffers harm at the hands of a non-governmental actor, the government may be liable because “the government has a constitutional duty to protect a person against injuries inflicted by a third-party when it affirmatively places the person in a position of danger the person would not otherwise have faced.” Kamara v. AG of the United States, 420 F.3d 202, 216 (3d Cir.2005). In our Circuit, there are four “essential elements of a meritorious ‘state-created danger’ claim: (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential" }, { "docid": "9035957", "title": "", "text": "often the most critical aspect of a qualified immunity analysis. In undertaking that task, we are guided by the Supreme Court's repeated instructions to do so in light of the particular facts of the case at hand. See Kisela , 138 S.Ct. at 1152 ; White v. Pauly , --- U.S. ----, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) ; Mullenix v. Luna , --- U.S. ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015). We accordingly define the right at issue here as one not to be injured or killed as a result of a police officer's reckless pursuit of an individual suspected of a summary traffic offense when there is no pending emergency and when the suspect is not actively fleeing the police. As earlier noted, Sauers's complaint relies on the state-created danger theory of liability to establish his right to be free from what Homanko did. That doctrine embodies the principle that the government has an obligation under the Fourteenth Amendment's Due Process Clause \"to protect individuals against dangers that the government itself creates.\" Haberle v. Troxell , 885 F.3d 170, 176 (3d Cir. 2018). Establishing a claim under that doctrine requires a plaintiff to plead four elements: (1) [t]he harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant's acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state's actions, as opposed to a member of the public in general; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. Id. at 176-77 (citation omitted). It is clear, we think, that the complaint adequately alleges elements one, three, and four. Whether Homanko's alleged conduct shocks the conscience is a closer call. The level of" }, { "docid": "23583680", "title": "", "text": "(emphasis in original). De-Shaney also left open the possibility that the state may be liable for constitutionally protected rights, even in the absence of a special relationship with an individual, when the state, through its affirmative conduct, creates or enhances a danger for the individual. 489 U.S. at 201, 109 S.Ct. 998. This “state-created danger” exception applies when the state, through some affirmative conduct, places the individual in a position of danger. See Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir.1998). The “special relationship” exception is not at issue here. However, the “state-created danger” exception, permitting liability when the State caused the harm or made the victim more vulnerable to an existing harm, is relevant to our inquiry. This exception was not clearly defined by the Court in DeShaney, but has been developed by the lower courts based upon the Court’s statement in DeShaney that [w]hile the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father’s custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual’s safety by having once offered him shelter. 489 U.S. at 201, 109 S.Ct. 998. We adopted the state-created danger theory of liability in Kneipp v. Tedder, 95 F.3d 1199 (3d Cir.1996). To state a claim for a civil rights violation under the state-created danger theory, we held that a plaintiff must show: (1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actors acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the State and the plaintiff; and (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party to" }, { "docid": "22228628", "title": "", "text": "tailored to serve this important public interest. B. State Action Requirement The Due Process Clause of the Fourteenth Amendment does not impose upon the state an affirmative duty to protect its citizens against private acts of violence, but rather, places limitations on affirmative state action that denies life, liberty, or property without due process of law. See DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 195, 109 S.Ct. 998, 1002- 03, 103 L.Ed.2d 249 (1989). In DeShaney, the Supreme Court stated that the Due Process Clause imposed an affirmative duty to protect an individual against private acts of violence where a “special relationship” exists between the state and the private individual, such as when the state takes a person into its custody. See id. at 199-201, 109 S.Ct. at 1005-06. Applying this principle to the facts in DeShaney, the Supreme Court did not find a due process violation where a young child, Joshua DeShaney, suffered serious harm at the hands of his father after the state failed to remove the child from the father’s custody. See id. at 201, 109 S.Ct. at 1006. Thus, before holding the City liable for violation of the officers’ constitutional rights to privacy, we must address whether the actions or potential actions of private actors, namely the gang members of the Short North Posse, can be attributed to the City. In DeShaney, the Court left open the possibility that the state may be liable for private acts which violate constitutionally protected rights despite the absence of a special relationship. The Court stated that, “[w]hile the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them.” Id. at 201, 109 S.Ct. at 1006. Several courts of appeals have cited this statement as support for recognizing a constitutional violation uiider a state-created-danger theory of liability. See Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir.1996); Uhlrig v. Harder, 64 F.3d 567, 572 n. 7 (10th Cir.1995); Dwares v. City" }, { "docid": "18403835", "title": "", "text": "panel considered Kneipp and its progeny and clarified the four part state-created danger test. It instructed that the four elements are:,. (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. Id. at 281 (internal citations and quotation marks omitted). The majority noted that the addition of the word “affirmatively” to the fourth element was not an innovation — but merely a recognition that both DeShaney and this Court’s precedents explicitly required an affirmative act, rather than inaction. Id. at 282 (citing D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1374 (3d Cir.1992) (en banc)) (“Liability under the state-created danger theory is predicated upon the state’s affirmative acts which work to the plaintiffs detriment in terms of exposure to danger.”); Brown v. Grabowski, 922 F.2d 1097, 1100-01 (3d Cir.1990) (noting that DeShaney holds “that a state’s failure to take affirmative action to protect a victim from the actions of a third party will not, in the absence of a custodial relationship ... support a civil rights claim”). The first question in determining whether Dr. Kim should receive the protection of qualified immunity is whether he violated Ye’s constitutional rights — in this case, whether his actions constituted a violation of the substantive component of the Due Process Clause via the state-created danger exception. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Dr. Kim concedes that the first three elements of a state-created danger claim are satisfied." }, { "docid": "18403834", "title": "", "text": "liability can attach under § 1983. We have refined the Kneipp test in subsequent cases. See Rivas v. City of Passaic, 365 F.3d 181, 202-03 (3d Cir.2004) (Ambro, J. concurring) (noting the changes and stating that “[i]n light of these substantial modifications to the Kneipp test, Kneipp as shorthand is a misnomer”). Notably, the test no longer requires that a crime be committed by a third-party. As Judge Ambro noted in his concurrence in Rivas: “The fourth element’s reference to a ‘third party’s crime’ arises from the doctrine’s origin as an exception to the general rule that the state does not have a general affirmative obligation to protect its citizens from the violent acts of private individuals. The courts, however, have not limited the doctrine to cases where third parties caused the harm.” Id. at 202 (internal quotation omitted); see also Estate of Smith v. Marasco (Smith I), 318 F.3d 497 (3d Cir.2003). This Court considered the necessary elements of a state-created danger in Bright v. Westmoreland County, 443 F.3d 276 (3d Cir.2006). The Bright panel considered Kneipp and its progeny and clarified the four part state-created danger test. It instructed that the four elements are:,. (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. Id. at 281 (internal citations and quotation marks omitted). The majority noted that the addition of the word “affirmatively” to the fourth element was not an innovation — but merely a recognition that both DeShaney and this Court’s precedents explicitly" }, { "docid": "23033331", "title": "", "text": "by these new circumstances, nor does it preclude us from revisiting Middle Bucks while sitting en banc. II. Blackhawk May Have Also Created the Danger That Harmed The Morrows The Morrows also argue that the School may be liable under the “state-created danger” theory. The majority concludes that this cause of action must also be dismissed because the Morrows have failed to plead an “affirmative act” by the School. Majority Op. at 177-78. Although we have acknowledged that “the line between action and inaction may not always be clear” in the context of these kinds of claims, Bright v. Westmoreland Cnty., 443 F.3d 276, 282 (3d Cir.2006), the consequence of that line becomes sadly clearer with the Court’s decision in this case: administrators who let violence run rampant can take shelter under the label “inaction.” Dereliction of duty becomes a school’s best defense. This outcome is contrary to an appropriate understanding of the state-created danger doctrine. Indeed, although the doctrine represents a narrow exception to DeShaney, the majority narrows the exception to the vanishing point by saying that school officials are free to ignore court orders and their own disciplinary code, enabling a pattern of physical abuse to persist. To prove a state-created danger, a plaintiff must demonstrate that: (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. Id. at 281 (quotation marks and citations omitted). The first and third elements are not in dispute in this case. We therefore discuss the second and fourth" }, { "docid": "23583681", "title": "", "text": "do anything to render him any more vulnerable to them. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father’s custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual’s safety by having once offered him shelter. 489 U.S. at 201, 109 S.Ct. 998. We adopted the state-created danger theory of liability in Kneipp v. Tedder, 95 F.3d 1199 (3d Cir.1996). To state a claim for a civil rights violation under the state-created danger theory, we held that a plaintiff must show: (1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actors acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the State and the plaintiff; and (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party to cause harm. Id. at 1208 (citing Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir.1995)). The “relationship” required by the third element of this test is different than the “relationship” in the “special relationship” exception to DeShaney. In the context of the state-created danger theory, the “relationship” requirement implies that there was contact between the parties such that the plaintiff was a foreseeable victim in the tort sense, and not in the custodial sense because the State has deprived the individual of the liberty necessary to care for himself. Id. at 1209 n. 22. Determining the appropriate lens through which we must view actions in the state-created danger context, though, is a vexing problem. See Ziccardi v. City of Philadelphia, 288 F.3d 57, 64 (3d Cir.2002). The Supreme Court has specifically pointed out that the Due Process Clause is not implicated by an official’s negligent act. Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Additionally, the Court has instructed that “deliberate indifference” is the necessary standard in" }, { "docid": "5084454", "title": "", "text": "which to base the procedural due process claim. Summary judgment will be granted to all Defendants on the procedural due process claim. As to the substantive due process claim, Plaintiff asserts that Defendants’ actions collectively caused Oliva to take his own life. Plaintiff argues, [Defendants were well aware of Oliva’s mental condition and received continued reports from his treating psychiatrist and psychologist as well as from its own State Police medical staff. Oliva was approved for stress leave and was medicated for depression and anxiety. Yet [Defendants continued to harass and retaliate against Oliva despite his condition, finally making him a principal in an investigation that was precipitated by his initial complaints of wrongdoing within the Division. (Opposition Brief at 39) Plaintiff asserts Defendants are liable under a state-created danger theory. “To prevail on a state-created danger theory in the Third Circuit, a plaintiff must prove the following four elements: (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.” Sanford v. Stiles, 456 F.3d 298, 304 (3d Cir.2006); see also Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir.2008). Plaintiff asserts three affirmative acts forming the basis of this claim: (1) Defendant Armitage decided to make Oliva a principal in the Gallagher investigation; (2) Defendant Santiago’s letter informing Oliva that he might not be reenlisted; and (3) Defendant Dr. Izzi’s determination that Oliva was fit to return to full duty status. According to Plaintiff, these actions significantly increased Oliva’s anxiety and depression, thereby" }, { "docid": "22397121", "title": "", "text": "to confront unreasonable dangers at the risk of losing their jobs, the defendants engaged in “arbitrary and conscience shocking behavior prohibited by substantive due process.” Id. Here, in contrast, the risk of contracting an infection was a “risk incident to [his] service as an employee” at the jail, id., of which Kaucher was on notice from the outset of his employment. Moreover, there is no allegation that Kaucher was threatened with discharge if he failed to confront a particular danger at the jail. We do not rule out the possibility that the evidence on the record could support a jury finding that defendants acted negligently. But the Kauchers have not alleged conduct that rises to a level of deliberate indifference that could be characterized as conscience shocking. C. Nor have the Kauchers alleged a valid claim under the state created danger doctrine. Generally, the Due Process Clause does not impose an affirmative obligation on the state to protect its citizens. See DeShaney, 489 U.S. at 195-96, 109 S.Ct. 998. But under the state created danger doctrine, the state may assume responsibility for the safety of an individual for whom it affirmatively creates or enhances a risk of danger. See Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir.1996). We require the following four elements of a meritorious state created danger claim: (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir.2006) (quotations and footnotes omitted). Because" }, { "docid": "22743088", "title": "", "text": "a sufficient showing of enough factual matter (taken as true) to suggest the required elements of Phillips’ claims. III. Under Section 1983, a plaintiff must plead a deprivation of a constitutional right and that the constitutional deprivation was caused by a person acting under the color of state law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996). Phillips alleges a deprivation of her son’s right to life, liberty and bodily integrity under the Fourteenth Amendment to the Constitution. Individuals have a constitutional liberty interest in personal bodily integrity that is protected by the Due Process Clause of the Fourteenth Amendment. D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364, 1368 (3d Cir.1992) (citing Ingraham v. Wright, 430 U.S. 651, 672-74, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977)). However, the Due Process Clause does not impose an affirmative obligation on the state to protect its citizens. See DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 195-96, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). The state-created danger theory operates as an exception to that general rule and requires plaintiffs to meet a four-part test: (1) the harm ultimately caused to the plaintiff was foreseeable and fairly direct; (2) the state-actor acted in willful disregard for the plaintiffs safety; (3) there was some relationship between the state and the plaintiff; and (4) the state-actor used his authority to create an opportunity for danger that otherwise would not have existed. Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir.2006) (quotations and footnotes omitted); see also Rivas v. City of Passaic, 365 F.3d 181, 194 (3d Cir.2004). Here, the District Court dismissed Phillips’ complaint under a Rule 12(b)(6) motion, based upon her failure to adequately plead the first, second and fourth elements of the test — that the harm was foreseeable, that the state actor’s behavior “shocked the conscience,” and that the defendant’s conduct rendered Mark Phillips more vulnerable to danger. See Bright, 443 F.3d at 281; Rivas v. City of Passaic, 365 F.3d 181, 194 (3d Cir.2004). Because the District Court erred in its analysis of several" }, { "docid": "15507982", "title": "", "text": "liberty, or property interests of which the government itself may not deprive the individual.” DeShaney v. Winnebago County Dep’t of Soc. Serv., 489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). In other words, even where a plaintiff suffers harm at the hands of a non-governmental actor, the government may be liable because “the government has a constitutional duty to protect a person against injuries inflicted by a third-party when it affirmatively places the person in a position of danger the person would not otherwise have faced.” Kamara v. AG of the United States, 420 F.3d 202, 216 (3d Cir.2005). In our Circuit, there are four “essential elements of a meritorious ‘state-created danger’ claim: (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.” Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 1483, 167 L.Ed.2d 228 (2007). The District Court held that genuine issues of material fact exist as to each of these four elements, and that therefore the Walters meet the “threshold question” in the qualified immunity analysis. Walter, 465 F.Supp.2d at 418-22, 427. We agree that the third element is met — as a participant in Stacy’s arrest, Michael Walter was in a discrete class of persons more likely to be targeted by Stacy than was a member of the public in general. And we may assume without deciding that the first element, foreseeability of the harm, is met as well. But we" } ]

[ { "docid": "22999254", "title": "", "text": "527, 530 (1964), cert. denied, 379 U.S. 929; see, also, Alpert v. United States, 161 Ct. Cl. 810, 816 (1963) (intra-employing agency appeal) ; Dixon v. United States, 122 Ct. Cl. 332, 336-37 (1952) (same). Failure to do so precludes judicial consideration of the points he could have, but did not, present to the Commission. This principle is applicable not only to a total omission to seek review by the Commission but also to a failure properly to present a particular claim of error which could and should have been made to the Commission. In Indiviglio, supra, we said: Of course, if plaintiff’s allegation is aimed at a procedural error, it is incumbent upon him to appeal the dismissal to the Civil Service Commission. Plaintiff did not process an appeal to the Civil Service Commission based on a violation of procedures, and his failure in this respect would necessarily bar this action. In the Alpert and Dixon cases, supra, the court likewise refused to consider specific claims of error which the employee had not raised administratively. We know of no reason why this rule should be inapplicable to an appeal as of right to the Commission’s Board of Appeals and Review. For the cases within its competence, that body is the ultimate tribunal within the Commission (except for the discretionary review by the Commissioners) to decide and correct errors which have occurred in the removal process. The principles underlying the exhaustion doctrine require the employee to preserve and present to this Board all the claims (which it can consider) before he can rely on those errors in a court proceeding. To re-phrase what we said in Long v. United States, sufra: “We think it would be quite intolerable that, Congress having given the Commission the authority to hear and decide cases, a litigant might withhold [an] important, perhaps decisive, [point] from the [Board of Appeals and Beview], and later seek to present it in this court. The requirement that a party exhaust his administrative remedies would be made meaningless if such conduct were permitted.” See, also, Blackmar v. United States," } ]

[ { "docid": "17979038", "title": "", "text": "the Commission's opinions, briefs, and argument, that once any curtailment plan was adopted, without specific findings directly aimed at the damage issue, no damage action of any type could lie. We have undertaken in this opinion to set out the reasons we feel such a position is invalid with the hope that time and energy will be conserved by addressing file noted deficiencies before any final order is entered. JOHN R. BROWN, Chief Judge (concurring) : I concur in the result and much of the opinion of the court. Believing that much of the court’s dictatorial commentary might be misunderstood either by the parties or the ubiquitous courts who might fall heir to these unknown damage claims, however, I think some clarification is in order. I. In Opinions 606 and 606A the Commission has spoken, rather cryptically, to the issue of whether compliance with an FPC sanctioned curtailment tariff would, should, or could exculpate a pipeline from its contractual duties to pro vide specified quantities of gas or pay for the substitute fuel used by its customers in lieu thereof. Curiously, the court suggests that the only forum invested with the power to make such a determination would be a court of law in which a damage suit was pending. But this is surely not what we mean to say, for it would necessarily overrule many of our prior cases in which we have held that the administrative agencies of our government — indeed, the FPC in particular — have not only a right, but a positive duty to determine the legal and practical ramifications of their valid orders. See, e. g., J. M. Huber Corp. v. Denman, 5 Cir., 1966, 367 F.2d 104; Weymouth v. Colorado Interstate Gas Co., 5 Cir., 1966, 367 F.2d 84. Perhaps the court creates this difficulty by failing to recall that the agency determination is subject to judicial review. We do not accord administrative agencies plenary jurisdiction, only primary. Thus, although the court is correct in requiring additional rulings from the FPC, it should be emphasized that the ultimate contentions of the respective parties" }, { "docid": "17815916", "title": "", "text": "rights and equal employment legislation, and the Commission can now do the same for this federal employee. There is no reason why plaintiff should not have the same opportunity as we gave to the plaintiffs a year ago in Allison. Back fay for discriminatory failure to tram: In addition to incorrectly voiding the administrative finding of discrimination in failing to supply training and wrongly reading the administrative decision as a discretionary refusal to give a pecuniary remedy, the court seems to consider it impossible to adjudicate the monetary consequences of this denial in the form of a back-pay award. Without any factual basis or effort to see what can be done, the opinion appears to consider the inquiry too speculative to be undertaken. This slights the powers and the resourcefulness of the Civil Service Commis sion and cuts off at the threshold, before the attempt is even made, any consideration whether some sort of monetary remedy can properly be fashioned. I am not so omniscient that I can say categorically, at this initial stage, that it would necessarily be useless to have the matter threshed out at the Commission level. The thing to do is to allow the effort to be made before crying failure. The remedial aspects of equal employment opportunity litigation are still in their infancy, and I see no call to declare a priori that they cannot possibly grow and develop in this way or that. The Commission has full powers under the new Equal Employment Opportunity Act of 1972 and we do not yet know the forms in which that plenary authority can, will, and should be used. II Judge Skelton’s separate opinion would dismiss for lack of jurisdiction, citing the dissents in Chambers and Allison. On the point of jurisdiction, I continue to adhere to the opinions of the court in those two oases. III The disposition of the case I would make is, first, to uphold our jurisdiction on the basis of the Chambers and Allison decisions; second, to sustain the administrative findings that plaintiff was discriminatorily treated; and, third, following Allison, to deny" }, { "docid": "4220953", "title": "", "text": "By allowing a class action in this situation, the court would be providing a vehicle to the plaintiffs for bypassing agency determination. This would violate Rule 82 of the Federal Rules of Civil Procedure which forbids any construction of the rules so as to extend the jurisdiction of the district court. Finally, it is doubtful that the numerosity requirements of Rule 23(a)(1) can be met in this case. Be sides the named plaintiffs in the present action, only one other T.V.A. employee could possibly meet the requirements previously stated. The joinder of this single person could hardly be deemed impracticable. 5. Having ruled that at least two plaintiffs, Eastland and Sheffield, have satisfied the jurisdictional requirements for filing this action, the court must proceed to what it considers to be the final issue. Plaintiffs make the contention that federal employment discrimination eases arising under the 1972 amendment to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Supp. II, 1972), are to be adjudicated pursuant to the same procedures and standards as are available in Title VII cases which challenge employment discrimination in the private sector. Following this reasoning, plaintiffs contend that the court in the instant case must grant each a de novo trial without regard to any previous findings at the administrative level. On the other hand, defendant T.V.A. argues that the court’s function in this case is limited to a review of the administrative record to determine whether the decision is supported by the record and to insure that basic due process rights have been accorded the plaintiffs. In order to reach a decision on this point, it is necessary to distinguish between the available remedies and relief accorded to private sector employees versus federal employees. With regard to private employees, amended Title VII of the Civil Rights Act of 1964 generally prohibits certain racially discriminatory employment practices as unlawful employment practices. 42 U.S.C. § 2000e-2(a)(1) (Supp. II, 1972). After specified proceedings before the Equal Employment Oportunity Commission, 42 U. S.C. § 2000e-5(a) (Supp. II, 1972), the private employee may bring" }, { "docid": "4207588", "title": "", "text": "is petitioning the court for relief or defending an action brought against him. In either situation, the failure to pursue the prescribed administrative course effectively prohibits him from raising in court the merits of his claim or defense which could. have been entertained administratively in the first instance. United States v. Ruzicka, 329 U.S. 287 (1946); United States v. White, No. CV 75-364-EC (C.D. Cal., Jan. 12, 1976); cf. Smith v. United States, 199 F. 2d 377 (1st Cir. 1952). Defendant seems to be correct that all plaintiff is doing, in raising this point, is attempting to reopen the issue of whether the administrative appeal procedure in Holiday’s case was mandatory, a matter settled by the Goldstein order and now the law of the case. Denying plaintiff the opportunity to address the merits of the counterclaim for 1968 and 1969 cannot very well be characterized as an unfair surprise to plaintiff, for in failing to challenge in administrative appeals the 1968 and 1969 determinations by the intermediary that Holiday owed refunds to the Government, the provider acquiesced in what it knew to be the claims of the Government. Were we to allow plaintiffs defense on the merits, after the opportunity for administrative review had come and gone, we would be saying that the \"provider could * * * properly by-pass this administrative procedure,” which would be contrary to Goldstein and which we decline to say. We hold, then, that plaintiff may not assert in this proceeding his claims that the 1968 and 1969 determinations of the intermediary were contrary to statute and regulations, and we further hold that, absent any proper challenges to its counterclaim on the facts or the law, defendant is entitled to summary judgment in its favor on the counterclaim for 1968 and 1969. In view of our disposition of plaintiffs challenge to the committee’s decision regarding the 1967 claim, no material facts remain in dispute over that claim. Our discussion above leads us to sustain the committee’s ruling, entitling defendant to summary judgment on its counterclaim for 1967. We conclude, therefore, that plaintiffs motion for summary" }, { "docid": "12001382", "title": "", "text": "Guard technician, his life’s work during almost his entire adult span, hitherto. As regards the finality language of 5 U.S.C. § 8347(c), it has never received so much respect in this court before. In Scroggins v. United States, 397 F.2d 295, 297, 184 Ct.Cl. 530, 534, cert. denied, 393 U.S. 952, 89 S.Ct. 376, 21 L.Ed.2d 363 (1968), we said that despite it a court could set aside a Commission determination where it involved a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error going to the heart of the administrative determination. The Commission was, in the Allen case, and is here, committing a misconstruction of the National Guard Technicians Act, depriving Allen and Polos of important substantive rights. It is in my view the legal duty of the Commission to recognize that Mr. Polos’ cardiovascular difficulties disqualify him from service on military active duty, and therefore to be a civilian technician when his unit is deactivated, and therefore he can no longer satisfy a physical requirement of his specific job, just as in the supposed case of the Air Traffic Controller who loses his 20/20 vision. He is “totally disabled\" by the special semantics of the Civil Service laws. I can’t help but believe that Polos’ case would have fared better with the court if the issues involved had come before us 20 years earlier than they did. We are drifting into a hostile and technical attitude towards federal employees’ claims that re- fleets, of course, what we currently read in the newspapers, and would have astonished our predecessors. I would favor hewing to the old line and expecting that, like the South, the mud-targeted civil servant will rise again. I dissent." }, { "docid": "23498901", "title": "", "text": "would not reopen the judgment under F.R.C.P. 60(b), despite having already done so, nevertheless proceeded to decide the mitigation issue on the merits, and concluded that the plaintiff had met his burden of mitigation by “doing what is reasonable” in seeking administrative and judicial review of his discharge. Although I am of opinion this holding on the merits as to mitigation is not in accordance with the statutes, regulations, and case law on the subject, especially in its reliance on Schwartz and Urbina, in both of which cases the employee was either actually at work or seeking work by way of mitigation, this is not my principal complaint. Whether the judgment was reopened or not, I think the district court erred in holding, contrary to the statutes and regulations, that the Postal Service was precluded from raising any issue relating to the amount of the award after the order of June 23rd became final. The district court, in the order of June 23rd, as it properly should not have, did not compute the amount, so the Postal Service then did just as the statutes and regulations require and began the computation. Indeed, had the district court, in its order of June 23rd, computed the amount, as it did later, absent prior administrative determination, its authority so to do was precluded by the statute and regulations prescribed by specific authority of the statute. This case is controlled by the Back Pay Act, 5 U.S.C. § 5596. Section 5596(b) provides that “An employee of an agency who ... is found by appropriate authority ... to have undergone an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of all or a part of the pay,” etc., “(1) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect an amount equal to all or any part of the pay” to which he would have been entitled, less any amounts earned by him through other employment during the period. Section 5596(c) provides, in pertinent part: “The Civil Service Commission" }, { "docid": "23498900", "title": "", "text": "p. 1246. The Secretary of Housing and Urban Development has since been substituted. See 12 U.S.C.A. § 1702 and notes. As to the mitigation issue, I must respectfully dissent. The district court, I believe, was not factually correct in its assertion that the judgment was not, and would not be, reopened. Thus, the majority, relying on the statement by the district court that it refused to reopen the judgment, has reached the incorrect conclusion that the Postal Service has failed to properly raise the mitigation issue. The record on appeal contains an order of the district court dated November 2, 1972, which I would construe as reopening the case to specifically consider the amount of back pay due plaintiff under the order of June 23, 1972. It is, then, apparent that the mitigation issue was raised, and the issue was not only raised, it was argued continually by correspondence from both parties to the court until the May 4, 1973 opinion and order were filed. I also note that the district court, although noting it would not reopen the judgment under F.R.C.P. 60(b), despite having already done so, nevertheless proceeded to decide the mitigation issue on the merits, and concluded that the plaintiff had met his burden of mitigation by “doing what is reasonable” in seeking administrative and judicial review of his discharge. Although I am of opinion this holding on the merits as to mitigation is not in accordance with the statutes, regulations, and case law on the subject, especially in its reliance on Schwartz and Urbina, in both of which cases the employee was either actually at work or seeking work by way of mitigation, this is not my principal complaint. Whether the judgment was reopened or not, I think the district court erred in holding, contrary to the statutes and regulations, that the Postal Service was precluded from raising any issue relating to the amount of the award after the order of June 23rd became final. The district court, in the order of June 23rd, as it properly should not have, did not compute the amount, so" }, { "docid": "23155670", "title": "", "text": "any amount in excess of that would be unjust and unreasonable in violation of § 15 (13) and would “constitute a rebate and discrimination and involve a departure from the tariff rules applicable, prohibited by section 1 of the Elkins Act, and section 6 (7) of the Interstate Commerce Act . . .” The Commission further ordered that the proceeding before it be discontinued. On this appeal both sides argued the jurisdictional question as well as questions going to the merits. Before we reach the merits of the controversy we must at the outset briefly dispose of the jurisdictional question. As the facts already stated reveal, the Commission’s findings and determination if upheld constitute far more than an “abstract declaration.” Rochester Telephone Corp. v. United States, 307 U. S. 125, 143. “Legal consequences” (id. at 132) would follow which would finally fix a “right or obligation” (id. at 131) on appellants’ part. These findings are more than a mere “stage in an incomplete process of administrative adjudication,” for the Commission here has discontinued further proceedings. Id. at 143. We, therefore, think that the Commission’s action falls within the class of “orders” which Rochester Telephone Corp. v. United States, supra, held to be reviewable by a district court of three judges. The District Court erred in dismissing the complaint for want of jurisdiction. On the merits, appellants’ major contention is that the Interstate Commerce Act and our earlier opinion in this case do not authorize the Commission to determine, as it here has done, the justice and reasonableness of mileage allowances which appellants were to receive on past transactions. The contention is that both our opinion and the Act authorize the Commission to do no more than determine what uniform allowance shippers as a class would be permitted to charge in the future. In part the argument is that insofar as the order is based on a treatment of shipper-lessees as a class apart, and on a limitation of their allowance to the cost to them of the cars they furnish, the order is invalid, in that it neither rests on," }, { "docid": "23175107", "title": "", "text": "issue raised in this case is appropriate for consideration in light of our res judicata holding, I express no opinion with respect to the “findings” made by the district court concerning liability or damages, even though it was the standard governing our review of those findings which gave rise to this court’s en banc hearing rather than any dispute with the panel’s earlier view that Davis’s § 1981 action had not been barred by the earlier state proceedings. For these reasons, as well as for all the reasons so ably set forth in Judge Adams’s majority opinion, I join that opinion. . For a discussion of the res judicata effect of state court judgments in state court, see Lehman v. Lycoming County Childrens Services, 648 F.2d 135, 138-39 (3d Cir. en banc) aff'd, -U.S. -, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). . Because the merits of Ms. Davis’s claims (racial discrimination, damages, mitigation of damages) need not be reached and thus have not been addressed, I believe it is also inappropriate to imply, as Judge Sloviter’s dissenting opinion seems to, that the district court judgment in Ms. Davis’s favor would have withstood appellate review, or that she would have fared differently on the merits in federal court than she did in state court. GIBBONS, Circuit Judge, with whom A. LEON HIGGINBOTHAM, Jr., Circuit Judge joins, dissenting: This case is before us on an appeal from a final judgment against United States Steel Corporation (USS) in favor of Thelma Davis in her action alleging employment discrimination in violation of 42 U.S.C. § 1981. USS contends that the trial court’s findings of fact are clearly erroneous, and that in any event the section 1981 action is barred by res judicata. The majority reaches only the res judicata contention, holding that the section 1981 action is barred. Because, under Fed.R.Civ.P. 8(c), res judicata is an affirmative defense, it is important to look at the record to see how the issue was presented in the district court. Moreover a review of the procedural history of this unfortunate lawsuit will serve as a case" }, { "docid": "9962208", "title": "", "text": "Ct. Cl. 241, 299 F.2d 266, cert. denied, 371 U.S. 913 (1962). Defendant asks us, in any event, to remand so that the Civil Service Commission can consider for itself the issue of ex parte communication. It is neither necessary nor appropriate to take that course because, in our view, that issue can be decided only the way we have determined it; any other solution would either be without support in substantial evidence or incorrect as a matter of law. \"We apply the established rule for personnel and pay cases — that unlawful administrative action depriving a claimant of a procedural right voids the action and leaves the plaintiff entitled to his money otherwise due, until (at the least) proper procedural steps are completed * * 169 Ct. Cl. at 198, 340 F.2d at 622. Pointing out that exceptions are made for harmless error, the Gratehouse opinion declared: \"A prejudicial procedural error is not rendered harmless, however, because the merits of the dispute appear to be clearly against the employee.” 206 Ct. Cl. at 296 n. 3, 512 F.2d at 1108 n.3. Under our long-standing, consistently applied rule, it is irrelevant that FORSCOM and both levels of the Civil Service Commission later sustained the merits of plaintiffs firing. (As already pointed out, there is insufficient evidence that any of these later deciding bodies knew of Col. Peach’s improper communication to Gen. Berry). See, e.g., note 14, supra, and the two Camero decisions. There were also other accusations against Doyle of misconduct and improper attitude. No procedural deprivation was before the Supreme Court in Mt. Healthy. The Supreme Court stressed that there were permissible grounds for refusing to continue Doyle’s employment, and that it would not be unusual for proper grounds to exist along with an improper one. In the present case plaintiffs procedural right can be thought to rest on the regulation establishing the grievance procedure, not on the Constitution itself. See Camero, supra, 179 Ct. Cl. at 526-27, 375 F.2d at 780-81. BENNETT, Judge, dissenting: Today the court takes an already exceedingly generous rule and stretches it to wholly" }, { "docid": "8469763", "title": "", "text": "the statutory exemption as interpreted, were arbitrary and capricious. Before discussing these claims it must be decided procedurally whether we should consider certain evidence tendered by plaintiff dehors the record made before the Commission. The rule is well settled that proceedings such as this are not de novo, and ordinarily it is improper to allow the Commission’s findings to be attacked or supported in court by evidence which the Commission had no opportunity of considering. We do not believe that departure from established principles is warranted by the fact of the rule making proceeding or the subsequent entry of the modified order after the filing of plaintiff’s original complaint; nor does the limited purpose for which the new evidence was offered justify it. In any event, the proferred evidence was not of a character to throw into question the conclusions reached here. It is our opinion that the Commission clearly possessed jurisdiction to determine the extent of the statutory exemption provided by Section 203(b) (7a), supra. The line of demarcation between exempt and unexempt service is equally important for the purposes of the application of permissible regulations to motor carriers and the withholding of impermissible ones by the Commission. The Commission has the broad power “[t]o administer, execute and enforce all provisions * * * ” of Part II of the Act dealing with motor carriers, “to make all necessary orders in connection therewith, and to prescribe rules, regulations, and procedures for such administration.” The determination of the area of exemption through case by case adjudication or by general rule subject to case by case application, is within the Commission’s competence. And there appears no real dissonance, in theory or in practice, between the voices of the Commission and the Federal Aeronautics Board in this area, taking into consideration their respective objectives and functions in view of the national transportation policy. The convincing foundations for these conclusions have been so recently and well stated by another three-judge court, with the views of which we agree, as to make extended discussion here on the point unnecessary. The reliance placed by plaintiff" }, { "docid": "15731614", "title": "", "text": "that the Civil Service Commission relied on Dr. Eck’s opinion in violation of pertinent procedural rules, by which the Commission is firmly bound. Indeed, this circumvention of the hearing process, and of its attendant opportunities to review and comment on the evidence and to cross-examine witnesses, raises serious questions of procedural due process. Where I must differ with the court, however, is as to whether the error was nonprejudicial, particularly on the court’s theory that as evidence Dr. Eek’s statement was “merely cumulative.” Neither the Commission nor the court attempts to demonstrate that appellant could not possibly have successfully attacked or at least mitigated Dr. Eck’s opinion had she been given the chance to do so. The cross-examination of Dr. Valle by appellant’s counsel, and the introduction of an article from a psychiatric journal that undercut the employing agency’s under standing of Dr. Valle’s conclusions, indicate that an opportunity to challenge Dr. Eck’s “impression” would not necessarily have been futile. Implicitly acknowledging this, the court adopts the analytical technique of attempting to determine whether the Commission would have reached the same result had it not solicited and received Dr. Eck’s opinion. Though, indubitably, some procedural improprieties can readily and truly be labeled “harmless,” only in relatively clear cases should we undertake to do so. Generally, agency action makes no claim on judicial affirmance while the consequences of material error in the agency’s findings remain a matter of substantial doubt. Additionally, as we have had occasion to admonish, “[t]he doctrine [of harmless error] must be used gingerly, if at all, when basic procedural rights are at stake.” To be sure, as the court aptly points out, we must focus on the methodology of agency decisionmaking and not substitute our own decisionmaking skills for those of the agency. And the corollary of that principle is that when a procedural mistake is uncovered we normally should return the litigation — corrected to remove the defect — to the administrative process rather than attempt to decide the merits ourselves. When a procedural reg ulation ignored by the agency is designed to produce a fairer" }, { "docid": "2349094", "title": "", "text": "only where compliance with the normal specifications is not practical. A fortiori, then, a court cannot reach the question of validity of a departure from the exception to the normal rule where the showing of impracticality has neither been made nor its absence explained. IV. Administrative Procedure Act The final argument which we consider in detail is appellant’s contention that the Commission order violates those provisions of § 5(c) of the Administrative Procedure Act which require generally that decision-making and investigative or prosecuting functions of an agency be separated. Before the hearings were held, the Commission announced that § 5(c) did not apply to these proceedings. We need not decide whether the Commission was correct in this view, for KSEO has waived its right to have that issue decided in this court. The Commission’s rules required KSEO to make a timely objection in advance of the hearings to Commission’s interpretation of § 5(c). This KSEO failed to do. KSEO now says that the requirements of § 5(c) are mandatory and that waiver is impossible. We think this position untenable. The legislative history clearly indicates the possibility of specific waiver: “No agency action taken or refused would be lawful except as done in full compliance with all applicable provisions of the bill and subject to the judicial review provided. No agreed waiver of its provisions would suffice unless entirely voluntary and without any manner or form of coercion.” And waiver by non-action would reasonably follow where, as here, timely objection would have given the agency an opportunity to correct errors at the threshold of the proceedings which might otherwise require the subsequent invalidation of the entire proceeding. We think additional reasons for reversal advanced by appellant are without sufficient merit to warrant discussion. Remanded for further proceedings in accordance with this opinion. WILBUR K. MILLER, Circuit Judge, concurs in the result. . KSEO broadcasts during the daytime only. J.A., p. 198. . KSEO, as a Class II station, is normally entitled to protection from daytime interference within the area where its broadcast signal is no weaker than 0.5 millivolts per meter" }, { "docid": "18228104", "title": "", "text": "court the Government did not challenge or reject, in any way, this administrative finding of discrimination. Its sole defense was that there is no basis in law for the award of back pay to a person denied government employment due to racial discrimination. Both in its brief and orally, the defendant conceded (or at least expressly declined to challenge) the finding of discrimination and of violation of the Executive Order. There is no argument on the point in either side’s brief. In fact, as the case was submitted to the court, there was no evidentiary predicate for challenging the administrative finding since neither party had filed or proffered the transcript of the agency hearing or the HEW investigative report. The only parts of the record that we had before us were the formal decisions of the HEW Director of Equal Employment Opportunity and of the Commission’s Board of Appeals and Beview. That was the record on which we were asked by the parties to base our decision. After oral argument, some of the judges asked, sua sponte and individually, for the agency transcript and the investigative report. These were supplied pursuant to the requests. The quotations in the dissents are taken from these documents, obtained after argument as a result of these requests. So far as I can tell, this is the first occasion (at least since I came to the court) on which a judge of this court has rejected sua sponte, in a government personnel case, an administrative finding favorable to the individual, even though the defendant has not asked us to overturn the finding but, rather, has acquiesced in it. We have had many instances in which (by administrative process) some benefit or relief was granted, or some prior adverse action rectified, but the claimant sought still further relief in this court on the basis of the administrative determination in his favor. Our uniform practice has been to accept the favorable personnel determination (if not challenged), and simply to decide whether additional relief is warranted. If the defendant is content to acquiesce in the basic determination, and" }, { "docid": "18228106", "title": "", "text": "to argue merely that the plaintiff has already had what is rightly coming as a result of that favorable holding, we do not interject ourselves into the merits of the determination by considering whether the Government’s favorable administrative ruling was in fact correct. This unbroken practice accords, of course, with the normal rule that courts deal only with the issues actually presented, as well as with the constraints we impose on pay-case plaintiffs — who are barred from raising in this court points that they failed to make before the Civil Service Commission. See Dargo v. United States, 116 Ct. Cl. 1193, 1201 (1966); Pine v. United States, 178 Ct. Cl. 146, 371 F. 2d 466 (1967). In this case, the Government did not challenge, at the Commission level or the court level, the correctness of the administrative finding of discrimination, and neither side broached that issue before the court. Nevertheless, the dissents launch, on their own, an attack on the administrative determination. Thus, what the dissenting opinions do is unique and contrary to our regular procedure. In my view, there is no warrant for this departure, and the opinions give no reason for such an unprecedented reaching out, in this particular case, to grasp and decide an issue not raised or before us. II I have stressed that the merits of the finding of discrimination are not properly before us, but nevertheless, in order to minimize possible misapprehension by readers of these opinions, it is appropriate to point out the dissents’ mistaken conception of the actual finding. Those opinions treat plaintiff as if she were simply a “troublemaker”; the discussion fails to recognize that racial matters were at the core of this complaint of “troublemaking.” The formal HEW decision was: “We find that the denial of equal opportunity for employment in the instant case was based substantially on the applicant’s previous racial discrimination complaint 'and that such denial constituted a violation of Executive Order 11478 and Department regulations pursuant thereto.” The reference to “applicant’s previous racial discrimination complaint” was to the report from her previous employer, Beckley Appalachia Regional" }, { "docid": "23331418", "title": "", "text": "Considering the particular facts in this case we have created no circuit conflicts. We have great doubt, contrary to Judge Pos-ner’s view, that this majority opinion will jeopardize our whole system of appellate justice. We are not using Tom’s social security problem as a means of advocating that we abandon our own judicial system in favor of the \"Continental systems of procedure,” whatever that may be. We shall not respond to certain other comments by Judge Posner which we view as far afield from what is necessary or appropriate to the decision of this case on its merits. We believe that the Secretary simply has failed in her proof, and that Tom has shown himself fairly entitled, not to benefits, but to further and proper consideration of his claim. POSNER, Circuit Judge, dissenting. The appellant has asked us to reverse the district court — which affirmed the denial of the appellant’s application for social security benefits — on grounds that my brethren correctly find to be without merit. That ought to be the end of the case. But instead my brethren reverse, and send the case back to the social security administration because of two errors in the administrative law judge’s opinion. The vocational expert listed jobs that involve light rather than, as the administrative law judge thought, sedentary work; and the administrative law judge failed to take into account the fact that the applicant is not only of advanced age but is close to retirement, and thé regulations distinguish between these two statuses. Neither ground was raised by the applicant (who is represented by counsel) at any stage in these proceedings — not before the administrative law judge, not before the appeals council, not before the district court, not in his brief in this court, not at oral argument. The government has had no opportunity to comment on these grounds; but a more basic objection to what my brethren have done is that grounds for reversal that are not raised are waived, especially when the case involves review of administrative action and the grounds were not presented to the" }, { "docid": "15459973", "title": "", "text": "... has been afforded no opportunity to pass.’” Prometheus II, 652 F.3d at 454 (quoting 47 U.S.C. § 405(a)). The Commission says that Deregulatory Petitioners fail the second prong of this test because they did not present the argument to the Commission, either initially or in a petition for reconsideration, before requesting judicial review. We conclude that the challenge is not waived. The text of § 405(a) “does not refer to the necessity of a party raising an argument before the Commission — as does the typical exhaustion statute — but [instead] only [requires] that the Commission have an ‘opportunity to pass’ on a question of fact or law raised in the petition.” Time Warner Entm’t Co., L.P. v. FCC, 144 F.3d 75, 79 (D.C. Cir. 1998) (emphasis in original). Thus, where a dissent by a Commissioner raises “the very argument” that the parties address to us, there is ordinarily no bar to judicial review because it would be “ignoring the realities of administrative decision-making to say that the [Commission] majority had no opportunity” to pass on the issue. Office of Communication of United Church of Christ v. FCC, 465 F.2d 519, 523 (D.C. Cir. 1972). In Prometheus II, without taking issue with the premise that a Commissioner’s dissent can fairly present an issue, we imposed some limitations. There two Commissioners raised a particular issue that the parties did not, but neither Commissioner devoted more than two sentences to it. Under those circumstances, we concluded that § 405(a) barred us from deciding that issue. Prometheus II, 652 F.3d at 454-55. We distinguished Office of Communication of United Church of Christ because, unlike in that case, it was “far from clear whether the full Commission considered” the dissents. Id. at 455. Our situation is different. Commissioner Pai issued a lengthy dissent that presented, in great detail, the argument that the television JSA rule violates § 202(h). As discussed, he said that the “merits of our attribution rules can’t be separated from the merits of our local television ownership rules” and that the Commission was “obliged to take into consideration” arguments against" }, { "docid": "18228105", "title": "", "text": "sua sponte and individually, for the agency transcript and the investigative report. These were supplied pursuant to the requests. The quotations in the dissents are taken from these documents, obtained after argument as a result of these requests. So far as I can tell, this is the first occasion (at least since I came to the court) on which a judge of this court has rejected sua sponte, in a government personnel case, an administrative finding favorable to the individual, even though the defendant has not asked us to overturn the finding but, rather, has acquiesced in it. We have had many instances in which (by administrative process) some benefit or relief was granted, or some prior adverse action rectified, but the claimant sought still further relief in this court on the basis of the administrative determination in his favor. Our uniform practice has been to accept the favorable personnel determination (if not challenged), and simply to decide whether additional relief is warranted. If the defendant is content to acquiesce in the basic determination, and to argue merely that the plaintiff has already had what is rightly coming as a result of that favorable holding, we do not interject ourselves into the merits of the determination by considering whether the Government’s favorable administrative ruling was in fact correct. This unbroken practice accords, of course, with the normal rule that courts deal only with the issues actually presented, as well as with the constraints we impose on pay-case plaintiffs — who are barred from raising in this court points that they failed to make before the Civil Service Commission. See Dargo v. United States, 116 Ct. Cl. 1193, 1201 (1966); Pine v. United States, 178 Ct. Cl. 146, 371 F. 2d 466 (1967). In this case, the Government did not challenge, at the Commission level or the court level, the correctness of the administrative finding of discrimination, and neither side broached that issue before the court. Nevertheless, the dissents launch, on their own, an attack on the administrative determination. Thus, what the dissenting opinions do is unique and contrary to our" }, { "docid": "22671424", "title": "", "text": "counsel .... [w]ith rare exception, a defendant must raise ineffective assistance of counsel claims in a collateral proceeding, not on direct appeal.”) (citation omitted). Our holding today does not disturb this longstanding rule. . Mr. Hahn does note that at the sentencing hearing his counsel indicated that he believed Mr. Hahn was entitled to appeal this question despite the appeal waiver. Nevertheless, these statements made after the entry of the appeal waiver and the district court's acceptance of the guilty plea cannot overcome the plain language of the appeal waiver. . In this case, the government moved to dismiss Mr. Hahn’s appeal for lack of subject matter jurisdiction. We rejected this argument. Nevertheless, given that Mr. Hahn's waiver of appellate rights is enforceable, which precludes us from reaching the merits of this appeal, \"this court has inherent authority,. wholly aside from any statutory warrant, to dismiss [this] appeal ... as frivolous [because] the appeal ... presents no arguably meritorious issue for our consideration.\" Pil-lay v. Immigration & Naturalization Serv., 45 F.3d 14, 17 (2d Cir.1995) (per curiam). LUCERO, joined by SEYMOUR and HENRY, Circuit Judges, concurring in part, dissenting in part. I join parts I, II, III.A and III.B of the per curiam opinion. We resolve today the primary question on which en banc review was granted, that we have subject matter jurisdiction to consider challenges to enforceable waivers of appellate rights. My point of departure from the majority opinion, compelling my dissent, is my conclusion that the claim before us is renewable because it falls outside the scope of Marcus Hahn’s waiver of appeal. Upon review of the merits, I conclude that the district court unambiguously misapprehended its discretion in sentencing Hahn, and that its misapplication resulted in a sentence potentially five years greater than the one that could have been imposed. I would remand for resen-tencing in accordance with the corrected standard of discretion. Let me turn first to the scope of the waiver. Hahn claims that the district court’s misapprehension of its sentencing discretion is an allegation of error beyond the scope of his appeal waiver that" }, { "docid": "18228107", "title": "", "text": "regular procedure. In my view, there is no warrant for this departure, and the opinions give no reason for such an unprecedented reaching out, in this particular case, to grasp and decide an issue not raised or before us. II I have stressed that the merits of the finding of discrimination are not properly before us, but nevertheless, in order to minimize possible misapprehension by readers of these opinions, it is appropriate to point out the dissents’ mistaken conception of the actual finding. Those opinions treat plaintiff as if she were simply a “troublemaker”; the discussion fails to recognize that racial matters were at the core of this complaint of “troublemaking.” The formal HEW decision was: “We find that the denial of equal opportunity for employment in the instant case was based substantially on the applicant’s previous racial discrimination complaint 'and that such denial constituted a violation of Executive Order 11478 and Department regulations pursuant thereto.” The reference to “applicant’s previous racial discrimination complaint” was to the report from her previous employer, Beckley Appalachia Regional Hospital [BARH], that “she was a perennial troublemaker who, during her BARIT employment, was not averse to frivolously alleging racial discrimination and calling on the NAACP.” The HEW office which refused to hire plaintiff admitted that it had made no inquiry whether or not her complaints of racial discrimination while at the hospital were in fact frivolous, but simply accepted the hospital’s report as true and a datum. The question then is whether it can be considered a violation of the Executive Order against racial discrimination for an agency to refuse to hire an applicant on the mere say-so of a former employer that she had improperly charged racial discrimination by that former employer. There is considerable material bearing on this question. Section 704(a) of the 1964 Civil Rights Act, 42 U.S.C. §2000e-3(a), provides (in relevant part) : “It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment * * * because he has opposed any practice made an unlawful employment practice by this" } ]

[ { "docid": "368514", "title": "", "text": "the name of the creditor must be included in the schedule though failure of his description may not be fatal. See Re Osofsky, 2 Cir., 50 F.2d 241. What constitutes satisfactory performance of this requirement depends upon the particular facts in each case. Kreitlein v. Ferger, 238 U.S. 21, 35 S.Ct. 685, 59 L. Ed. 1184. While extreme exactness must be used in scheduling the creditors by name, a misnomer need not be fatal on the principle of idem sonans or whether the creditor can easily be ascertained from the whole description given. As in the case of scheduling the names of creditors, great care must be exercised by the bankrupt in specifying residences of creditors. In this respect, “due scheduling” requires that the residences of creditors, if known to the bankrupt, be set forth correctly in the schedule; If the bankrupt is ignorant of such information, such facts should be expressly stated in the schedule. No fixed rule can be laid down as to the particular manner in which the residence of a creditor must be designated, but the particular circumstances of each case must be examined. The statute requires that the creditor should have “had notice or actual knowledge” and the rule is well established that where a statute requires notice to be given and there is nothing in the context of the statute or in the circumstances of the case to show that any other notice was intended, a personal notice must always be given. We are confronted in this case with whether or not a reading of the filing of a petition in bankruptcy by a member of the Housing Authority of the City of Atlanta constituted actual notice as is required under the Act. Under Section 17, sub. a(3) of the Act, debts not duly scheduled in time for proof and allowance are not affected by discharge unless the creditor had notice or actual knowledge of the proceedings in bankruptcy. The problem therefore arises as to what constitutes notice or actual knowledge within the intent of this provision. Such knowledge must be actually existent and" } ]

[ { "docid": "1720981", "title": "", "text": "creditors.” A failure to do so renders the unscheduled debt non-dischargeable “unless it is clear that the creditor had actual notice in ample time fully to protect his rights.” 542 F.2d at 253. See, e.g., Birkett v. Co lumbia Bank, 195 U.S. 345, 350, 25 S.Ct. 38, 40, 49 L.Ed. 231, 232 (1904) (“Actual knowledge of the proceedings, contemplated by the section, is a knowledge in time to avail a creditor of the benefits of the law, — in time to give him an equal opportunity with other creditors, — not a knowledge that may come so late as to deprive him of participation in the administration of the affairs of the estate or to deprive him of dividends”); In re Computer Utilization, Inc., 508 F.2d 673 (5th Cir. 1975). In the final analysis, the question presented becomes rhetorical. It cannot be maintained seriously that the plaintiff had notice of the proceeding in time to protect her claim when her only knowledge came from a letter dated on the last day of the claim period. The trial judge properly allowed the withdrawal of the admission that her lawyer had been advised of the bankruptcy proceedings before the time for filing a proof of claim had expired. On the state of this record, the refusal to allow the withdrawal would have constituted both error and an abuse of discretion. Further, we find no merit in the discharge in bankruptcy defense. The decision of the trial court is AFFIRMED in all respects. . Rule 122(3) of the Rules of Bankruptcy Procedure prescribes: Notice of the order directing that the case continue as a bankruptcy case shall be given to all creditors in the manner provided by Rule 203 within 20 days after entry of the order and shall accompany the notice of the first meeting of creditors if one is held. If no first meeting of creditors is held, the date of the mailing of the notice of the order as provided in this paragraph shall be deemed the first date set for the first meeting of creditors for the purpose of" }, { "docid": "4606674", "title": "", "text": "as set forth in Section 521 is to file a complete list of creditors and a schedule of liabilities. The Debtor must exercise great care when completing the schedules so as to include any creditor that has any arguable grounds for asserting a claim against him. In re Lorenzen, 21 B.R. 129, 131 (Bankr.N.D.Ohio 1982); In re Gilbert, 38 B.R. 948, 950 (Bankr.N.D.Ohio 1984). The failure to schedule a creditor or a liability may result in the denial of the debtor’s overall discharge under Section 727 or the exception of the unlisted debts from the debtor’s discharge under Section 523. Section 523(a)(3) provides that debts which have not been duly scheduled in time to allow the creditor to exercise certain rights are excepted from discharge, unless the creditor had notice or actual knowledge of the case in time to exercise those rights. The courts have often emphasized the expectation that the debtor and his or her attorney will exercise special care in preparing the schedules. “In view of the severe penalties for false statements, ... the denial of a discharge for the same reason, ... and the failure of a discharge to apply to unscheduled debts, ... a bankrupt is well advised to put down every conceivable obligation without any reservation.” Commercial Banking Corp. v. Martel, 123 F.2d 846 (2d Cir.1941); 3 Collier on Bankruptcy, If 521.03 at 521-14, n. 11 (15th Ed. 1992). Prior to August 1986 when this Court began to use the No-Asset Notice permitted by Rule 2002(e), there was a bar date set for the filing of proofs of claim in all Chapter 7 cases whether they be asset or no-asset cases. This Court, as many courts before it, began using the No-Asset Notice for its administrative convenience so that it would not have to file and process thousands of claims in no-asset cases, unnecessarily devoting significant clerk’s time and creating the need for additional storage. Clearly in exercising this administrative option no thought was given to its impact on the substantive provisions of Section 523(a)(3). Had this Court not opted for the No-Asset Notice, a" }, { "docid": "19135439", "title": "", "text": "its Motion, the Court agreed to schedule an evidentiary hearing for the consideration of those issues. Rather than adducing previously undiscoverable matters, however, the Creditor simply re-presented those arguments and evidentiary contentions which had heen made by it at the original hearing. As such, in weighing the matters before it, the Court must conclude that the Creditor’s Motion for Reconsideration lacks the support of any evidence sufficient to warrant reconsideration. Cf. Russ v. Int’l Paper Co., 943 F.2d 589, 593 (5th Cir.1991) (citing DeLong Corp. v. Raymond Int’l,, Inc., 622 F.2d 1135 (3d Cir.1980) (parties may not justify reconsideration merely through the submission of previously available evidence)). . The Debtor, of course, bore the initial burden of establishing the propriety of reopening this bankruptcy case to add the Creditor’s claim to his schedules. See infra, notes 6-9 and accompanying text. This burden, however, should not be confused with the Creditor’s present obligation as movant for reconsideration to produce some cognizable basis for the relief that its seeks. See generally 11 Charles A. Wright & Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2810.1 (1995) (discussing the burden that a rule 59(e) movant must carry and the various showings which might warrant reconsideration). . Significantly, prior to adoption of the modem Code, relevant bankruptcy law provided for the per se nondischargeability of any unscheduled claim, the holder of which had no knowledge of the bankruptcy case— A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as ... have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy. Section 17a(3), Bankruptcy Act, codified at 11 U.S.C. § 350(a)(3) (repealed by the Bankruptcy Reform Act of 1978); see also Birkett v. Columbia Bank, 195 U.S. 345, 25 S.Ct. 38, 49 L.Ed. 231 (1904); In re Adams, 734 F.2d 1094, 1098 (5th Cir.1984). .As one pair of commentators recently summarized the" }, { "docid": "1720980", "title": "", "text": "case continue as a bankruptcy case,” and states that the mailing begins the claim filing period. The notice of conversion was mailed on January 11, 1978. The final day for the filing of a proof of claim in the Chapter IV proceeding was July 11, 1978. Defense counsel’s letter to plaintiff’s counsel bears that date. We conclude that this letter does not constitute the statutory notice which is to be given to creditors when a Chapter XI petition is converted to a Chapter IV proceeding. Absent statutory notice, we must determine whether the letter from defense counsel imparted “actual knowledge” within the meaning of section 17(a)(3). That determination must be made against the backdrop of the obligation of a debtor to notify all creditors of the pending bankruptcy proceeding. In Moureau v. Leaseamatic, Inc., 542 F.2d 251, 253 (5th Cir. 1976) (citing In re Venson, 234 F.Supp. 271 (N.D.Ga.), aff’d, 337 F.2d 616 (5th Cir. 1964)), we remarked that “it has long been held that the debtor must take great care in the scheduling of creditors.” A failure to do so renders the unscheduled debt non-dischargeable “unless it is clear that the creditor had actual notice in ample time fully to protect his rights.” 542 F.2d at 253. See, e.g., Birkett v. Co lumbia Bank, 195 U.S. 345, 350, 25 S.Ct. 38, 40, 49 L.Ed. 231, 232 (1904) (“Actual knowledge of the proceedings, contemplated by the section, is a knowledge in time to avail a creditor of the benefits of the law, — in time to give him an equal opportunity with other creditors, — not a knowledge that may come so late as to deprive him of participation in the administration of the affairs of the estate or to deprive him of dividends”); In re Computer Utilization, Inc., 508 F.2d 673 (5th Cir. 1975). In the final analysis, the question presented becomes rhetorical. It cannot be maintained seriously that the plaintiff had notice of the proceeding in time to protect her claim when her only knowledge came from a letter dated on the last day of the claim period." }, { "docid": "10191978", "title": "", "text": "to Rule 515. After notice and hearing, the Court allowed Porter’s application to reopen on July 7,1980, in order to consider whether Arrow’s debt was discharged by Porter’s bankruptcy proceeding. Porter admits both the existence and the amount of Arrow’s claim but argues that despite his failure to schedule Arrow’s debt on his bankruptcy petition, Arrow’s debt has been discharged because Arrow had notice and actual knowledge of the bankruptcy proceeding within the meaning of § 17(a)(3) of the Bankruptcy Act, 11 U.S.C. § 35(a)(3) (1970), which provides: A discharge in bankruptcy shall release a bankrupt from all his provable debts, whether allowable in full or in part, except such as... (3) have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such creditor had notice of actual knowledge of the proceedings in bankruptcy; Arrow denies having any such knowledge of Porter’s bankruptcy proceeding until well after the bankruptcy case was closed. A trial was held on the dischargeability of Porter’s debt to Arrow. Based upon the testimony and documents received into evidence as well as the pleadings of the parties, I find the facts to be as set forth below. Porter advances three arguments in support of a finding that the enforcement of Arrow’s claim against Porter is barred by Porter’s discharge in bankruptcy. Porter first asserts that Arrow had notice and actual knowledge of Porter’s bankruptcy proceeding so as to fall within the exception enumerated in § 17(a)(3). In Birkett v. Columbia, 195 U.S. 345, 25 S.Ct. 38, 49 L.Ed. 231 (1904), the Supreme Court held that the dischargeability of an unscheduled debt under a predecessor to § 17(a)(3) depended upon whether the creditor received actual notice or knowledge of the bankruptcy “in time to give him an equal opportunity with other creditors — not a knowledge that may come so late as to deprive him of participation in the administration of the affairs of the estate, or to deprive him of dividends .. .. ” 195 U.S. at 350, 25 S.Ct. at 40. Arrow" }, { "docid": "15483131", "title": "", "text": "strictly in Birkett v. Columbia Bank, 195 U.S. 345, 25 S.Ct. 38, 49 L.Ed. 231 (1904). There, the debtor, Mr. Birkett, filed a voluntary petition for bankruptcy and failed to include one of his creditors, Columbia Bank, on his schedules. Unlike this case, however, Columbia Bank first learned of the bankruptcy proceedings almost two months after the discharge of the case. Mr. Birkett contended that section 17(a) was inapplicable since his failure to list Columbia Bank was due to inadvertence and since Columbia Bank learned of the bankruptcy proceeding in time to protect its rights. The Supreme Court rejected both arguments. As to the former contention, the Court ruled that a debtor’s neglect or inadvertence is irrelevant and cannot preclude the discharge of unscheduled debt. Id. at 351, 25 S.Ct. at 44. As to the latter argu ment, the Supreme Court determined that Columbia Bank did not have actual knowledge of the bankruptcy action. The Court ruled that actual knowledge “is a knowledge in time to avail a creditor of the benefits of the law, — in time to give him an equal opportunity with other creditors ...” Id. The debt in question was therefore deemed non-dischargeable under section 17(a)(3) of the Bankruptcy Act. Almost forty years later, the Second Circuit, following the Supreme Court’s guidance in Birkett, held that section 17(a)(3) contained no exceptions. Milando v. Perrone, 157 F.2d 1002, 1004 (2d Cir.1946). In the Milando court’s view, the failure-to-list provision forbade the discharge of unlisted debt even if the creditor learned of the bankruptcy proceeding in time to participate in the distribution of dividends. Id. This Court construed the law quite differently in Robinson v. Mann, 339 F.2d 547 (5th Cir.1964). Focussing upon the equitable powers of the bankruptcy court, this Court rejected other decisions which had held that debtors were absolutely barred from amending their schedules after the proof-of-claim period. Id. at 549. Unlike Birkett and Mi-lando, the Robinson Court determined that out-of-time amendments would be allowed— but only if exceptional circumstances and equity so required. Id. at 550. C. Construing Section 523(a)(3)(A) In 1977, Congress set" }, { "docid": "18560149", "title": "", "text": "35(a)(3) of this title], follows current law, but clarifies some uncertainties generated by the case law construing 17(a)(3) [former section 35(a)(3) of this title]. The debt is excepted from discharge if it was not scheduled in time to permit timely action by the creditor to protect his rights, unless the creditor had notice or actual knowledge of the case.” S.Rep. No. 95-989, 95th Cong., 2d Sess. 77-79 (1978); H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 363 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. A review of the law which developed under § 17a(3), the predecessor section to § 523(a)(3), is not particularly helpful either, as it contained no requirement that the omitted creditor also have grounds to object to the non-dischargeability of its debt. The former section excepted debts from discharge which “have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.” See 11 U.S.C. § 35 (§ 17a(3)); In re Laczko, 37 B.R. 676, 678 (9th Cir.B.A.P.1984), aff'd without opinion, 772 F.2d 912 (1985) (citing Bankruptcy Act § 17a(3)). To determine if the omitted debt was excepted from discharge under § 17a(3), the courts generally reviewed the sufficiency of notice to the creditor. Various policy considerations which are threaded throughout the code do help guide construction of § 523(a)(3). To promote accuracy and thoroughness in petitions, debtors bear the burden to correctly list creditors’ claims and amend their schedules when necessary. See § 521, Bankruptcy Rules 1007, 1009, 1019; see also, U.S., Small Business Administration v. Bridges, 894 F.2d 108, 111 (5th Cir.1990) (“[A] debtor must not take lightly her obligation to schedule all her creditors.”). And, as one court stated “The ‘fundamental purpose’ of notice to creditors is to give them an equal opportunity to avail themselves of the protection of the bankruptcy laws.... The reason for allocating this responsibility [to properly schedule debts] and its attendant penalties to the debtor is that it works to assure that the court will identify" }, { "docid": "22916278", "title": "", "text": "with his amended schedules,” and to the creditor “to oppose, the granting of such a discharge on the merits.” The judgment creditor appeals. Sec. 2, sub. a(8), of the Bankruptcy Act, 11 U.S.C.A. § 11, sub. a(8), empowers the bankruptcy courts to reopen estates “for cause shown.” The previously existing limitation on this power, that it be exercised only as to estates not fully administered, was removed by the Chandler Act in 1938. Since there is no time limitation stated either in the statute or'in Genera! Order No. 11, 11 U.S.C.A. following section 53, which provides for amendments to the bankrupt’s schedules, the estate should be reopened and the amendment allowed even at this late date if good cause is shown. In re Perlman, 2 Cir., 116 F.2d 49. If, however, the bankrupt’s purpose, to bar the creditor’s suit, cannot be effected, the reopening and amendment are useless and should not be allowed. Phillips v. Tarrier Co. of Delaware, 5 Cir., 93 F.2d 674, certiorari denied 303 U.S. 655, 58 S.Ct. 759, 82 L.Ed. 1115; In re Dunn, D.C.W.D. Wash., 38 F.Supp. 1017. Indeed, the order below is designed to lead to a discharge i£ the estate continues to be one of no assets; and that eventual objective is obviously the entire reason for the present proceedings. In his attempt to reach later-acquired assets of the bankrupt, the creditor is protected against the bar of the discharge heretofore granted by § 17, sub. a (3), of the Bankruptcy Act, 11 U.S.C.A. § 35, sub. a (3). This section provides that a discharge shall not release a bankrupt from a debt which he has not scheduled in time for it to be proved and allowed in the bankruptcy proceedings unless the creditor has notice or actual knowledge of the proceedings. The courts have no power to disregard this clear language. In re Spicer, D.C.W.D.N.Y., 145 F. 431; Birkett v. Columbia Bank, 195 U.S. 345, 350, 25 S.Ct 38, 49 L.Ed. 231. As pointed out in the latter case, this section requires that if a ■creditor is to be barred he must" }, { "docid": "9897415", "title": "", "text": "Beezley reasoned that the no-notice/no discharge provision does not apply to no asset cases because no bar date is ever established and therefore no filing of a claim is ever rendered untimely. With respect, we think that the statute aims to assure creditor notice before discharge and the idea that “timely filing” remains available after the bankruptcy proceeding closed is surely not what Congress had in mind. The history of the provision bears this out. The original 1898 Bankruptcy Act provided that a discharge was barred for debts that “have not been duly scheduled in time for proof and allowance” unless the creditor had notice or actual knowledge of the bankruptcy, section 17(a)(3); and the slightly more permissive present language (“neither listed or scheduled ... in time to permit ... timely filing of a proof of claim”) was substituted in the 1978 Bankruptcy Code for a narrow and specific purpose, namely, to “overrule” a 1904 Supreme Court decision, Birkett v. Columbia Bank, 195 U.S. 345, 25 S.Ct. 38, 49 L.Ed. 231 (1904). H.R.Rep. No. 95-595 (1977), reprinted in 1978 U.S.C.C.A.N 5963. Birkett dealt with an unusual case where a creditor was not listed, a discharge was granted and in the relatively brief period between the discharge and the full distribution of assets, the creditor learned of the bankruptcy — and did so in time that a proof of claim could have been filed entitling the creditor to participate in the estate. Even so, the Supreme Court held that the 1898 language (“not been duly scheduled”) governed and the debtor was unprotected by the discharge. Birkett, 195 U.S. at 350, 25 S.Ct. 38. The 1978 Bankruptcy Code substitution was apparently meant only to undo this overly-rigid reading. Even so, the Ninth Circuit reading has been followed, usually without much analysis, by other circuits; stress is usually placed on the absence of prejudice and on remedies available to the un-notified creditor if the debtor acted with fraudulent intent or if unlisted assets held are later discovered. By contrast, the Seventh Circuit took a different approach — broadly consistent with our view —" }, { "docid": "9897416", "title": "", "text": "(1977), reprinted in 1978 U.S.C.C.A.N 5963. Birkett dealt with an unusual case where a creditor was not listed, a discharge was granted and in the relatively brief period between the discharge and the full distribution of assets, the creditor learned of the bankruptcy — and did so in time that a proof of claim could have been filed entitling the creditor to participate in the estate. Even so, the Supreme Court held that the 1898 language (“not been duly scheduled”) governed and the debtor was unprotected by the discharge. Birkett, 195 U.S. at 350, 25 S.Ct. 38. The 1978 Bankruptcy Code substitution was apparently meant only to undo this overly-rigid reading. Even so, the Ninth Circuit reading has been followed, usually without much analysis, by other circuits; stress is usually placed on the absence of prejudice and on remedies available to the un-notified creditor if the debtor acted with fraudulent intent or if unlisted assets held are later discovered. By contrast, the Seventh Circuit took a different approach — broadly consistent with our view — in which it assumed that an unlisted debt was not discharged. In re Stark, 717 F.2d 322 (7th Cir.1983). In Stark, the holding was that that a no asset debtor could, long after the discharge, ask the bankruptcy court to reopen the proceeding to list belatedly a creditor who was innocently omitted and who would have received no benefit from notice. 717 F.2d at 324. But such a course properly leaves the burden on the debtor to show that the law and equities justify this relief — absent which the debt will remain undischarged. Weizman was free to seek that relief and started down that path; he did file a motion in the bankruptcy court, after the present district court litigation began, seeking to list his obligation to Colonial and so obtain the benefit of the discharge despite the lack of original notice. But he thereafter withdrew the request, possibly not caring to face the charge (endorsed by the district judge) of fraudulent concealment of assets in the original bankruptcy. Nothing in the language or" }, { "docid": "15483130", "title": "", "text": "section 521(1) of this title, with the name, if known to the debtor, of the creditor to whom such debt is owed, in time to permit ... timely filing of a proof of claim, unless such creditor had notice or actual knowledge of the ease in time for such timely filing ...” 11 U.S.C. § 523(a)(3)(A). Section 17(a)(3), the predecessor to section 523(a)(3)(A), similarly provided that unscheduled debts were not dischargeable. The provision read as follows: A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as ... have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy. Section 17(a)(3), Bankruptcy Act, codified at 11 U.S.C. § 35(a)(3) (repealed by the Bankruptcy Reform Act of 1978) (as quoted in In re Adams, 734 F.2d 1094, 1098 (5th Cir. 1984)). The Supreme Court construed this failure-to-list provision quite strictly in Birkett v. Columbia Bank, 195 U.S. 345, 25 S.Ct. 38, 49 L.Ed. 231 (1904). There, the debtor, Mr. Birkett, filed a voluntary petition for bankruptcy and failed to include one of his creditors, Columbia Bank, on his schedules. Unlike this case, however, Columbia Bank first learned of the bankruptcy proceedings almost two months after the discharge of the case. Mr. Birkett contended that section 17(a) was inapplicable since his failure to list Columbia Bank was due to inadvertence and since Columbia Bank learned of the bankruptcy proceeding in time to protect its rights. The Supreme Court rejected both arguments. As to the former contention, the Court ruled that a debtor’s neglect or inadvertence is irrelevant and cannot preclude the discharge of unscheduled debt. Id. at 351, 25 S.Ct. at 44. As to the latter argu ment, the Supreme Court determined that Columbia Bank did not have actual knowledge of the bankruptcy action. The Court ruled that actual knowledge “is a knowledge in time to avail a creditor of the benefits of the law," }, { "docid": "20917946", "title": "", "text": "such non-compliance and stalling, the bankruptcy court was entitled to use its discretion in extinguishing a case which— at that time — showed no indications of meaningful progression. The bankruptcy court properly refused to extend the protection of the bankruptcy procedure to a debtor unwilling to abide by the tenets of the Code. Continuation of this matter would have burdened the bankruptcy court and exposed appellant’s creditors to prejudicial delay. Accordingly, for the reasons set forth above, and based on the files, records, and proceedings herein, IT IS ORDERED that: The order of the bankruptcy court is affirmed. . Title 11, United States Code, Section 305, provides, in relevant part, that \"[t]he court, after notice and a hearing, may dismiss a case ... if ... the interests of creditors and the debtor would be better served by such dismissal.” 11 U.S.C. § 305. Section 305, however, is concerned with a bankruptcy court exercising abstention in the face of jurisdictional questions. . The Supreme Court has historically disfavored attempts by debtors to usurp the benefits created by the bankruptcy laws: That the law should give a creditor remedies against the estate of a bankruptcy, notwithstanding the neglect or default of the bankrupt, is natural. The law would be, indeed, defective without them. It would also be defective if it permitted the bankrupt to experiment with it, — to so manage and use its provisions as to conceal his estate, deceive or keep his creditors in ignorance of his proceeding, without penalty to him. It is easy to see what results such looseness would permit, — what preference could be accomplished and covered by it. Birkett v. Columbia Bank, 195 U.S. 345, 350-51, 25 S.Ct. 38, 40, 49 L.Ed. 231 (1904)." }, { "docid": "4682198", "title": "", "text": "shall be denied. . This is not a no-asset case in which a bar date was set and the debtor seeks to avoid nondis-chargeability under § 523(a)(3)(A) by amending the schedules effectively nunc pro tunc. Compare In re Soult, 894 F.2d 815 (6th Cir.1990) (case reopened in no-asset case in which bar date had been set in order to allow claim to be scheduled and filed and to be subjected to discharge) with In re Laczko, 37 B.R. 676 (9th Cir. BAP 1984), aff’d without opinion, 772 F.2d 912 (9th Cir.1985) (§ 523(a)(3)(A) applied despite amendment of schedules in no-asset case). . Baitcher makes reference to Birkett v. Columbia Bank, 195 U.S. 345, 25 S.Ct. 38, 49 L.Ed. 231 (1904), in which the Court construed Bankruptcy Act § 17 which excepted from the effect of a discharge debts \"... such as ... have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such creditor had notice or actual notice of the proceedings in bankruptcy.\" Id. at 349, 25 S.Ct. at 39 (emphasis added.) The Court concluded that an omitted creditor who had knowledge \"so late as to deprive him of participation in the administration of the affairs of the estate or to deprive him of dividends” is not a creditor that had actual notice of the proceedings. The Court held that the discharge did not affect an unscheduled creditor who had knowledge of the case in time to file a claim but after the time to object to discharge. The legislative history to § 523(a)(3) states that \"the provision is intended to overrule Birkett v. Columbia Bank.\" 124 Cong.Rec. It 11096 (daily ed. Sept. 28, 1978); S. 17412 (daily ed. Oct. 6, 1978). Section 523(a)(3)(A) is limited to protecting the creditor’s ability timely to file a claim. How Baitcher, in the face of the statute’s plain language, logically could reach the conclusion that intentional omission can make the debt non-dis-chargeable, even when there is still time to file a claim, is an issue this Court need not" }, { "docid": "22395218", "title": "", "text": "by the other provisions of the law urged by plaintiff in error. Actual knowledge of .the proceedings contemplated by the section is a knowledge in time to avail a creditor of the benefits of the law — in time to give him an equal opportunity with other creditors — not a knowledge that may come so late as to deprive him of participation in the administration of the affairs of the estate or to deprive him of dividends (section 65). -The provisions of the law relied upon by plaintiff in error are for the benefit of creditors, not of the debtor. That, the law should give a creditor remedies against the estate of a bankrupt, notwithstanding the neglect or default of the bankrupt, is natural. The law would be, indeed, defective without them. It would also be defective if it permitted the bankrupt to experiment with it — to so manage and use its provisions as to conceal his estate, deceive or keep his creditors in ignorance of his proceeding without penalty to him. It is easy to see what results such looseness would permit — what preference could be accomplished and covered by it. Judgment affirmed." }, { "docid": "12564244", "title": "", "text": "as to which \"uncertainties'' were intended to be clarified: \"Section 523(a)(3) ... is intended to overrule Birkett v. Columbia Bank, 195 U.S. 345, 25 S.Ct. 38, 49 L.Ed. 231 (1904).” 124 Cong.Rec. H11089 (Sept. 28, 1978), reprinted in 1978 U.S.C.C.A.N. 6436, 6522 (statement of Rep. Edwards); 124 Cong.Rec. SI7406 (Oct. 6, 1978), reprinted in 1978 U.S.C.C.A.N. 6505, 6522 (statement of Sen. DeConcini). In Birkett, the Supreme Court construed the predecessor of section 523(a)(3), which excepted from discharge any debt \"not ... duly scheduled in time for proof and allowance, ... unless [the] creditor had notice or actual knowledge of the proceedings in bankruptcy.” The Court stated that: Actual knowledge of the proceedings contemplated by the section is a knowledge in time to avail a creditor of the benefits of the law — in time to give him an equal opportunity with other creditors — not a knowledge that may come so late as to deprive him of participation in the administration of the affairs of the estate or to deprive him of dividends.... That the law should give a creditor remedies against the estate of a bankrupt, notwithstanding the neglect or default of the bankrupt, is natural. The law would, indeed, be defective without them. It would also be defective if it permitted the bankrupt to experiment with it — to so manage and use its provisions as to conceal his estate, deceive or keep his creditors in ignorance of his proceeding without penalty to him. 195 U.S. at 350, 25 S.Ct. at 39 (emphasis added). The legislative history of section 523(a)(3) declares unambiguously that Birkett was intended to be overruled. Assuming that we require such an explicit directive before we will be moved to heed the clear command of the Bankruptcy Code itself, I see no way to avoid the force of this one. Congress has expressly disapproved the importation of equitable notions of a debtor’s good faith or a creditor’s fair opportunity to participate in the bankruptcy process into the interpretation and analysis of section 523(a)(3). See Mendiola, 99 B.R. at 869-70 (\"[T]he clear language of Section 523(a)" }, { "docid": "12564245", "title": "", "text": "law should give a creditor remedies against the estate of a bankrupt, notwithstanding the neglect or default of the bankrupt, is natural. The law would, indeed, be defective without them. It would also be defective if it permitted the bankrupt to experiment with it — to so manage and use its provisions as to conceal his estate, deceive or keep his creditors in ignorance of his proceeding without penalty to him. 195 U.S. at 350, 25 S.Ct. at 39 (emphasis added). The legislative history of section 523(a)(3) declares unambiguously that Birkett was intended to be overruled. Assuming that we require such an explicit directive before we will be moved to heed the clear command of the Bankruptcy Code itself, I see no way to avoid the force of this one. Congress has expressly disapproved the importation of equitable notions of a debtor’s good faith or a creditor’s fair opportunity to participate in the bankruptcy process into the interpretation and analysis of section 523(a)(3). See Mendiola, 99 B.R. at 869-70 (\"[T]he clear language of Section 523(a) is not an aberration, but represents a Congressional policy choice. Congress could have excepted from the debtor’s discharge debts that were omitted, intentionally or otherwise, from the schedules. Congress might simply have continued pre-Code law.Instead, the legislative history shows that Congress expressly overruled that prior law and created the narrow exception found in § 523(a)(3)....”). . The equitable rule applied in Stark to a no-asset, no-bar-date case was originally developed for use in a very different kind of bankruptcy. The incautious use of such a standard outside the context in which it originated is at the heart of the problems we confront here. The typical Chapter 7 bankruptcy is the no-asset, no-bar-date case. In some instances, however, the debtor has no assets to distribute to creditors, but a bar date is set by the clerk's office. See In re Corgiat, 123 B.R. 388, 390-91 (Bankr.E.D.Cal.1991) (recognizing the importance of this distinction); In re Walendy, 118 B.R. 774, 775-76 (Bankr.C.D.Cal.1990) (same). In such a case, section 523(a)(3)(A) operates with respect to an omitted creditor as follows:" }, { "docid": "22916279", "title": "", "text": "In re Dunn, D.C.W.D. Wash., 38 F.Supp. 1017. Indeed, the order below is designed to lead to a discharge i£ the estate continues to be one of no assets; and that eventual objective is obviously the entire reason for the present proceedings. In his attempt to reach later-acquired assets of the bankrupt, the creditor is protected against the bar of the discharge heretofore granted by § 17, sub. a (3), of the Bankruptcy Act, 11 U.S.C.A. § 35, sub. a (3). This section provides that a discharge shall not release a bankrupt from a debt which he has not scheduled in time for it to be proved and allowed in the bankruptcy proceedings unless the creditor has notice or actual knowledge of the proceedings. The courts have no power to disregard this clear language. In re Spicer, D.C.W.D.N.Y., 145 F. 431; Birkett v. Columbia Bank, 195 U.S. 345, 350, 25 S.Ct 38, 49 L.Ed. 231. As pointed out in the latter case, this section requires that if a ■creditor is to be barred he must receive information of the bankruptcy proceeding in -time to participate in the administration of the estate as well as to share in the dividends. The fact that the judgment creditor in this case would have received no dividends if he had been able to prove his claim would therefore not be a sufficient reason to disregard the mandate of this section, even if the courts had power to disregard it. The consequence is that, unless the creditor can now be forced to prove his claim for its allowance, he cannot be barred from his ordinary remedies upon it. The time allowed by § 57, sub. n, 11 U.S.C.A. § 93, sub. n, for the filing of creditors’ claims is six months from the first date set for the first meeting of creditors. This time has of course long since elapsed. It now appears settled, particularly in the light of the still more detailed provisions brought into the statutory scheme by the 1938 amendments, that the bankruptcy court cannot extend the statutory period, even upon application" }, { "docid": "14920447", "title": "", "text": "resort to legislative history is necessary, as the result reached herein flows from a straightforward reading of the statute and its interplay with other pertinent provisions of the Bankruptcy Code. Though not.instrumental in its decision, we take solace from circumstances surrounding the genesis of present § 523(a)(3)(A) and the interpretation of its predecessor under the Bankruptcy Act of 1898 (“Bankruptcy Act”), and offer the following discussion of legislative history and even the resort by other courts to equitable principles, for emphasis and support for our analysis, rather than for substantive rationale. Under § 17(a) of the Bankruptcy Act: a discharge in bankruptcy shall release a bankrupt from all of his provable debts ... except such as ... have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy. Although § 17(a) of the Bankruptcy Act refers only to those debts not scheduled in time for proof and allowance, the Supreme Court, in Birkett v. Columbia Bank, interpreted § 17(a) of the Bankruptcy Act quite strictly. In Birkett, a creditor of the debtor learned of the bankruptcy after the entry of the order of discharge. The debtor argued that the failure to list the debt was inadvertent and that the creditor learned of the bankruptcy in time to prove its claim and to attempt to revoke the discharge (the facts establish that the debt- or’s assertions are borne out by the facts). Therefore, according to the debt- or, the creditor had actual knowledge of the bankruptcy proceedings as the phrase was used in § 17(a) of the Bankruptcy Act. The Supreme Court disagreed with the debtor. The Court held that neglect or inadvertence on the part of the debtor is irrelevant to the question of dischargeability under § 17(a) of the Bankruptcy Act. Moreover, as to the debtor’s contention that the creditor’s actual knowledge of the case came in time to afford the creditor the right to have its claim proven and allowed, the Court held: Actual" }, { "docid": "1083085", "title": "", "text": "own liability on the note as guarantor. The call from the credit union placed Appellant on inquiry notice to discover the details of the debtor’s bankruptcy. II. WHETHER THE DISCHARGE OF AN UNLISTED CONTINGENT CREDITOR’S CLAIM IN BANKRUPTCY BASED ON ACTUAL KNOWLEDGE VIOLATES THE CREDITOR’S RIGHT TO PROCEDURAL DUE PROCESS? Appellant has suggested that, as a contingent creditor whose claim arose only after the bankruptcy proceeding, he should have been entitled to some greater measure of notice than the “actual knowledge” required for current creditors. Appellant argues that the due process requirements of adequate and sufficient notice and an opportunity to preserve his rights have not been met, because as a contingent creditor, he did not “fully appreciate” the need to act to preserve his rights in bankruptcy. The right of a creditor to be present from the beginning of the bankruptcy proceedings was settled when Congress enacted section 523(a)(3). The provision creates an exception to discharge where a debt was not listed or scheduled, unless there was actual knowledge on the part of an unscheduled creditor. The provision was intended to overrule Birkett v. Columbia Bank, 195 U.S. 345, 25 S.Ct. 38, 49 L.Ed. 231 (1904), in which the Supreme Court had taken the position that a creditor is entitled under the Due Process Clause to an equal opportunity to participate in all bankruptcy proceedings from the start. See In re Butt, 68 B.R. 1001, 1003 (Bankr.C.D.Ill.1987). The Eleventh Circuit noted in Matter of Baitcher, 781 F.2d 1529, 1534 (11th Cir.1986) that the per se rule of Birkett was no longer effective, and that a discharge in a no-asset case should not be denied because the debt- or failed to schedule the debt due to an honest mistake. On the other hand, the Eleventh Circuit in Baitcher declined to adopt a per se rule that failure to notify a creditor in a no-asset case creates no prejudice to the creditor. In a no-asset case, it is not too late to file a timely proof of claim until assets are discovered for distribution, and hence a creditor would have an" }, { "docid": "22395217", "title": "", "text": "imposes the duty on the bankrupt to appear at the meeting of creditors for examination. The finding of the trial court is that defendant “had no notice or actual knowledge, or other knowledge, of said proceedings in bankruptcy prior to the discharge of the bankrupt therein.” This is made more definite as to time by the Court of Appeals. Defendant in error, upon making an inquiry by • letter November 6, 1899, about Russell & Birkett, was informed that they had gone through bankruptcy, and subsequently,. (November 17), the Northern District was given as the district of the proceedings. The discharge was September 12, 1899. Knowledge, therefore, it is contended, came to defendant in error in time to prove its claim (section 65), and to move to revoke the discharge of the bankrupt (section 15). It is hence argued that defendant in error must he held to have had “actual knowledge of the proceedings in bankruptcy,” as those words of section 17 must be construed. We do not think so, nor is that construction supported by the other provisions of the law urged by plaintiff in error. Actual knowledge of .the proceedings contemplated by the section is a knowledge in time to avail a creditor of the benefits of the law — in time to give him an equal opportunity with other creditors — not a knowledge that may come so late as to deprive him of participation in the administration of the affairs of the estate or to deprive him of dividends (section 65). -The provisions of the law relied upon by plaintiff in error are for the benefit of creditors, not of the debtor. That, the law should give a creditor remedies against the estate of a bankrupt, notwithstanding the neglect or default of the bankrupt, is natural. The law would be, indeed, defective without them. It would also be defective if it permitted the bankrupt to experiment with it — to so manage and use its provisions as to conceal his estate, deceive or keep his creditors in ignorance of his proceeding without penalty to him. It" } ]

[ { "docid": "22708721", "title": "", "text": "“ that the laws of the several states, except- where the Constitution, treaties, or statutes of the United States shall otherwise require .or provide, shall be' regarded as rules of decision in trials at common law in the Courts of the United ^States, in cases where they apply.” In order to maintain the argument, it' is éssential, therefore, to hold, that the .word “ laws,” in this section, includes within the scope of its meaning the decisions of the local tribunals. In the ordinary use of language it will hardly be contended that the.decisions of Courts constitute laws. They are, at most, only evidence of what the laws are; and are not bf themselves laws. They are often reexamined, reversed, and qualified by the Courts themselves, whenever they are found to be either defective,.-or ill-founded, or otherwise incorrecf. The laws of a state are more usually understood to mean the rales and .enactments promulgated by the legislative authority -thereof, or long established local customs having the force of laws. ' In all the various casés which have hitherto come before, us for decision, this Court have uniformly supposed, that the true interpretation of the thirty-fourth section limited its application to state laws strictly local, that is to say, to .the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights .and title's to things. having a permanent locality, such as the rights and titles to real estate, and other matters immovable and' intraierritorial in their nature and character. .It never has been supposed by us, that the section did apply, or was designed to apply, to questions of a more general nature,- not at-all dependent upon local statutes or’ local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other -written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon géneral reasoning and legal analogies, what is the true exposition of the contract or instrument, or" } ]

[ { "docid": "22661250", "title": "", "text": "rule was required, among other things, by § 34 of the Federal Judiciary Act of September 24, 1789, c. 20, 28 U. S. C. § 725, which provides: “The laws of the several States, except where the Constitution, treaties, or statutes of the -United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.” Because of the importance of the question whether the federal court was .free to disregard the alleged rule of the Pennsylvania common law, we granted certiorari. First. Swift v. Tyson, 16 Pet. 1, 18, held that federal courts exercising jurisdiction on the ground of diversity of citizenship need not, in matters of general jurisprudence, apply the unwritten law of the State as declared by .its highest court; that they are free to exercise an independent judgment as to what the common law of the State is — or should be; and that, as there stated by Mr. Justice Story: “the true interpretation of the thirty-fourth section limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us, that the section did apply, or was intended to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commerbial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to' ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case.”" }, { "docid": "22661248", "title": "", "text": "It contended, among other things, that its duty to Tompkins, and hence its liability, should be determined in accordance with the Pennsylvania law;,that under the law of Pennsylvania, as declared by its highest' court, persons who use pathways along the railroad right of way — that is a longitudinal pathway as distinguished from a crossing — are to be deemed trespassers; and that the railroad is not liable for injuries to undiscovered trespassers resulting from its negligence, unless it be wanton or wilful. Tompkins denied that any such rule had been established by the decisions of the Pennsylvania courts; and contended that, since there was no statute of the State on the subject, the railroad’s duty and liability is to be determined in federal courts as a matter of general law. .. The trial judge refused to rule that the applicable law precluded recovery. The jury brought in a verdict of $30,000; and the judgment entered thereon was affirmed by the Circuit Court of Appeals, which held, 90 F. 2d 603, 604, that it was unnecessary to consider whether the law of Pennsylvania was. as contended, because the question was one not of local, but of general, law and that “upon questions of general law the federal courts are free, in the absence of a local statute, to exercise their independent judgment as to what the law is; and it is well settled that the question of the responsibility of a railroad for injuries caused by its servants is one of general law. . . . Where the public has made open and notorious use of a railroad right of way for a long period of time and without objection, the company owes to persons on such permissive pathway a duty of care in the operation of its trains. ... It is likewise generally recognized law that a jury may find that negligence exists toward a pedestrian using a permissive path on the railroad right of way if he is hit by some object projecting from the side of the train.” The Erie had contended that application of the Pennsylvania" }, { "docid": "22536125", "title": "", "text": "and adopted by express authority of the States. All the early legislation of Congress manifests the purpose to affiliate the new system with that of the State, and especially, in the jurisprudence as between individuals, to have the writs' of the. one government or the other organs of .the same law, and controlled. by a common rule of decision. This principle was varied only when the Constitution of the United States, treaties, or acts of Congress provided a -specific law for the case. Accordingly, when Congress assigned to the Circuit Courts-sitting within the States “original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law,” it was careful to direct “ that the laws of the several States, except where the Constitution, treaties or statutes of the United States -shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.” Act September 24, 1789, §§ 11 and 34, 1 Stat. 78, 92. The Supreme Court has recently decided’ that the decisions of the state courts are not laws of the State, within the purview of this section of the act of Congress, in questions of a commercial character, and' that such questions are to be determined according to general principles of mercantile law, recognized by American and English authorities. Swift v. Tyson, 16 Pet. 1. The argument upon which the decision is foundéd insists that only the statutes of the State, or long established local customs having the force of laws, are embraced within the language of the clause, and that the court has always understood the section to apply solely to state laws, strictly local — positive statutes — and their construction by the state tribunals, and to rights and titles to things having a permanent locality, immovable and intraterritorial in their nature or character. ■ This exposition' by the Supreme Court, so xar as it covers this • question, is the law of the land, to the same -extent. and with-equal" }, { "docid": "11417019", "title": "", "text": "the law to be applied was stated by Mr. Justice Story in Swift v. Tyson, 36 Pet. 1, 18, 10 L. Ed. 865, as follows: “In the ordinary use of language, it will hardly be contended, that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not, of themselves, laws. They are often reexamined, reversed and qualified by the courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long-established local customs having the force of laws. In all the various cases, which have hitherto come be Core us lor decision, this court have uniformly supposed, that the true interpretation of tho 34th section [of the Judiciary Act of 1789 (28 US CA § 725)] limited its application to state laws, strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intra-territorial in their nature and character. It never has been supposed by us, that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to tho construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are ealled upon to perform the like functions as ourselves, that is, to ascertain, upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case.” The rule was applied in determining the liability of an owner of property for a nuisance maintained by a contractor in erecting a building thereon, Chicago City" }, { "docid": "16019986", "title": "", "text": "District Court sitting in Pennsylvania, which had also adopted the Uniform Act, the statute as interpreted by the courts of that state must be applied. The Circuit Court of Appeals held that it need not adopt the construction of the Act by the courts of either state, but should decide the case upon the general principles of the law merchant. From these it concluded the quoted provisions rendered the instruments uncertain as to the amount payable and therefore non-negotiable. The conformity act required the trial court to apply the local law in matters of procedure. The form of action and the right in which it must be brought were therefore governed by the Pennsylvania practice. But the procedural question turned on another of substance, namely, whether the instruments were negotiable. The negotiable quality of the notes is to be ascertained by reference to the law of Florida. The Uniform Negotiable Instruments Law adopted in that State provides (§1) that, “An instrument to be negotiable must conform to the following requirements: “2. Must contain an unconditional promise or order to pay a sum certain in money.” And by § 2 ft is declared: “ The sum payable is a sum certain'within the meaning of this Act, although it is to be paid: (1) With interest; or (2) By stated installments; or (3) By stated installments, with a provision that upon the default in payment of any installment or of interest, the whole shall become due; . . .” Section 34 of the Judiciary Act of 1789 directs that the laws of the several states, except where the Constitution, treaties or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply. The applicable state statute furnishes the rule of decision for a federal court sitting in the state or outside its borders. And in that court the law must be given the meaning and effect attributed to it by the highest court of the state, as if the state" }, { "docid": "11417018", "title": "", "text": "applying the rules of the common law; and, if there is any field of no rligenee law in which the federal courts ought to exercise an independent judgment in applying these rules, it would seem to be in automobile collision eases, where the parties involved are citizens of different states, and where the rules of the road are applied to highways used by people from every section of the country. Where rules are prescribed by statute for the use of the roads, the federal courts must follow them; but, where there is no statute, they should not hesitate to follow their independent judgment in applying the rules of the common law, and thus unify as far as possible the rules under which the people of the various sections of tho country may use the highways which are now so largely devoted to interstate travel and commerce. That we should apply the general law, and not tho local decisions, in cases of this general character, is settled, we think, beyond quesiion. The general rule as to the law to be applied was stated by Mr. Justice Story in Swift v. Tyson, 36 Pet. 1, 18, 10 L. Ed. 865, as follows: “In the ordinary use of language, it will hardly be contended, that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not, of themselves, laws. They are often reexamined, reversed and qualified by the courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long-established local customs having the force of laws. In all the various cases, which have hitherto come be Core us lor decision, this court have uniformly supposed, that the true interpretation of tho 34th section [of the Judiciary Act of 1789 (28 US CA § 725)] limited its application to state laws, strictly local, that is to say, to the positive statutes of the state, and the construction thereof" }, { "docid": "21042986", "title": "", "text": "the Process Acts where Congress directed that in trials at common law the federal courts should follow the “forms of writs and executions . . . and modes of process” of the forum state. See, e. g., Act of Sept. 29, 1789, c. 21, § 2, 1 Stat. 93. However, local statutes of limitations were not easily classifiable as “forms of writs and executions and modes of process”, and it appears that it was the Rules of Decision Act, which was applied not only in substantive matters but in procedural matters as well, to which the courts turned in applying state statutes of limitations. See Hill, State Procedural Law in Federal Nondiversity Litigation, 69 Harv.L.Rev. 66, 77 (1955). As the Court noted in Bauserman v. Blunt, 147 U.S. 647, 652, 13 S.Ct. 466, 468-469, 37 L.Ed. 316 (1893): By a provision inserted in the first Judiciary Act of the United States, and continued in force ever since, Congress has enacted that “the laws of the several states, except where the Constitution, treaties or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply.” Act [of] September 24, 1789, c. 20, § 34 (1 Stat. 92; Rev.Stat. § 721). No laws of the several States have been more steadfastly or more often recognized by this court, from the beginning, as rules of decision in the courts of the United States, than statutes of limitations of actions, real and personal, as enacted by the legislature of a State, and as construed by its highest court. And of course, in Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), the Court, while declining to characterize a statute of limitations as procedural or substantive, held that the state statute must be applied in a suit in equity by a federal court sitting in diversity. Although the series of cases in which application of aspects of state statute of limitations in federal courts reached its most" }, { "docid": "22350426", "title": "", "text": "Tyson (supra), the contention was that this court was obliged to follow the decisions of the State courts in all cases where they apply. But this court said: “ In order to maintain the argument, it is e'ssential, therefore, to hold that the word ‘ laws ’ in this section includes within the scope, of its meaning the decisions of the local tribunals. In the ordinary use of language it will hardly be contended that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not of themselves laws. They are often re-examined, reversed, and qualified by the courts tliemsélves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a State are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long-established local customs having the force of laws. In all the vari ous cases which have hitherto come before us for decisión this court have uniformly supposed that the true interpretation of the thirty-fourth section limited its application to State laws strictly local; that is to say, to the positive statutes of the' State, and' the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intra-territorial in their nature and character. It has never been supposed by us that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation : as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the State tribunals are called upon to perform the like functions as ourselves; that is, to 'ascertain upon general reasoning and legal analogies what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the." }, { "docid": "22661249", "title": "", "text": "unnecessary to consider whether the law of Pennsylvania was. as contended, because the question was one not of local, but of general, law and that “upon questions of general law the federal courts are free, in the absence of a local statute, to exercise their independent judgment as to what the law is; and it is well settled that the question of the responsibility of a railroad for injuries caused by its servants is one of general law. . . . Where the public has made open and notorious use of a railroad right of way for a long period of time and without objection, the company owes to persons on such permissive pathway a duty of care in the operation of its trains. ... It is likewise generally recognized law that a jury may find that negligence exists toward a pedestrian using a permissive path on the railroad right of way if he is hit by some object projecting from the side of the train.” The Erie had contended that application of the Pennsylvania rule was required, among other things, by § 34 of the Federal Judiciary Act of September 24, 1789, c. 20, 28 U. S. C. § 725, which provides: “The laws of the several States, except where the Constitution, treaties, or statutes of the -United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.” Because of the importance of the question whether the federal court was .free to disregard the alleged rule of the Pennsylvania common law, we granted certiorari. First. Swift v. Tyson, 16 Pet. 1, 18, held that federal courts exercising jurisdiction on the ground of diversity of citizenship need not, in matters of general jurisprudence, apply the unwritten law of the State as declared by .its highest court; that they are free to exercise an independent judgment as to what the common law of the State is — or should be; and that, as there stated by Mr. Justice Story: “the true interpretation" }, { "docid": "22661251", "title": "", "text": "of the thirty-fourth section limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us, that the section did apply, or was intended to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commerbial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to' ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case.” The Court in applying the rule of § 34 to equity cases, in Mason v. United States, 260 U. S. 545, 559, said: “The statute, however, is merely declarative of the rule which would exist in the absence of the statute.” The federal courts assumed, in' the broad field of “general law,” the power to declare rules of decision which Congress was confessedly without power to enact as statutes. Doubt was repeatedly expressed as'to the correctness of the construction given § 34, and as to the soundness of the rule which it introduced. But it was the more recent research of a competent scholar, who . examined the original document, which established that the construction given to it by the Court was erroneous; and that the purpose of the section was merely to make certain that, in all matters except those in which some federal law is controlling, the federal courts exercising jurisdiction in diversity of citizenship cases would apply as their rules of decision the law of the State, unwritten as well as written." }, { "docid": "22350427", "title": "", "text": "of the thirty-fourth section limited its application to State laws strictly local; that is to say, to the positive statutes of the' State, and' the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intra-territorial in their nature and character. It has never been supposed by us that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation : as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the State tribunals are called upon to perform the like functions as ourselves; that is, to 'ascertain upon general reasoning and legal analogies what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the. case.. And we have not now the slightest difficulty in .holding that this section, upon its true intendment and construction, is strictly limited to local statutes and local usages of the character before stated, and doeá not extend to contracts and other ■ instruments of a commerial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals^ but in the general principles and doctrines of commercial jurisprudence. Undoubtedly, the. decisions of the local tribunals upon such subjects are entitled' to and will receive the mqst deliberate attention and respect of this court; but they cannot furnish positive rules, or conclusive authority,' by which our own judgments áre to be bound up and governed.” In Carpenter v. The Providence Washington Insurance Co. (16 Pet. 495); decided at the same term with Swift v. Tyson, it was necessary to determine certain questions in the law of insurance. The court said: “ The questions under' our consideration are questions of general commercial law, and depend upon’ the construction of" }, { "docid": "22282267", "title": "", "text": "(9th Cir. 1981), which we review de novo, Miller v. United States, 587 F.2d 991, 994 (9th Cir. 1978). Our de novo review extends to the district court’s construction of state law. In re McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc) (overruling prior practice of deferring to district court’s interpretation of the law of the state in which it sits). Although we are not bound by the district court’s construction of state law, we are bound to follow the decisions of a state’s highest court in interpreting that state’s law. Aydin Corp. v. Loral Corp., 718 F.2d 897, 904 (9th Cir.1983). B. The Erie and Hanna Analyses We note at the outset that this court has already considered whether Erie requires federal courts to enforce section 583(b) in diversity suits. In Nealey v. Transportation Maritima Mexicana, S.A., 662 F.2d 1275, 1278 n. 5 (9th Cir.1980), we stated that rule 41(b), not section 583(b), governed dismissal for lack of prosecution in diversity suits. At oral argument of Nealey, however, the party opposing the enforcement of federal law conceded its applicability; the court’s statement is dicta. We therefore proceed to analyze whether the federal rule or a state law governs dismissal here. In 1938, the Supreme Court departed from precedent to rule that except in matters governed by the United States Constitution or acts of Congress, federal courts must apply state law in diversity suits. Erie, 304 U.S. at 78, 58 S.Ct. at 822 (construing The Federal Judiciary Act of 1789, ch. 20, § 34, 1 Stat. 73, 92 (Rules of Decision Act) (current version at 28 U.S.C. § 1652 (1982))). The Rules of Decision Act then provided that the “laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.” Prior to Erie, the Court had interpreted the Act as requiring federal court application only of state statutes and local decisions concerning real property, not of" }, { "docid": "22661266", "title": "", "text": "only evidence of what- the laws are, and not. of themselves laws. They are often re-examined, reversed, and qualified by the Courts themselves, whenevér they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a -state are more usually understood to mean, the rules and enactments promulgated by the legislative authority thereof, or long established local customs having the force of laws. In all the various cases, which have hitherto come before us for decision, this Court have uniformly supposed, that the true interpretation of the thirty-fourth section limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles' to things having a permanent locality, such as the rights and titles to' real- estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us, that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state .tribunals are called upon'to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the prin-. ciples of commercial law to govern the case. And we have not now the slightest difficulty in holding., that this section, upon its true intendment and construction, is strictly limited to local statutes and local usages of the .character before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly, the decisions of the local tribunals upon such subjects are entitled" }, { "docid": "22865824", "title": "", "text": "the Lord’s Day should' not “ constitute a defence to an action against a common carrier of passengers for any tort or injury suffered by a person so travelling.” The question then arises, how far is this court bound to follow the decisions of the Massachusetts Supreme Court on that subject ? The Congress of the United States, in the act by which the Federal courts were organized, enacted that “the laws of the several States, except where the Constitution, treaties or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.” Bev. Stat. § 721; Judiciary Act, 21- Sept., 1789, c. 20, § 31, 1 Stat\". 92. This statute has been often the subject of construction in this court, and its opinions have not always been expressed in language that is entirely harmonious. What are the laws of the several States which are to be regarded “ as rules of decision in trials at common law ” is a subject which has not been ascertained., and,.defined with that uniformity and precision desirable in a matter of such great importance. , The language of the statute limits its application to cases of trials at common law. There is, therefore, nothing in the section which requires it to be applied to proceedings in equity, or in admiralty; nor is it applicable to criminal offences against the United States, (see United States v. Reid, 12 How. 361,) or where the Constitution, treaties or statutes of the United States require other rules of decision. But with these, and some other exceptions which will be referred to presently, it must be admitted that it does provide that the laws of the several States shall. be received in the courts of the' United States, in cases, where they apply, as the rules of decision in trials at common law. It has been held by .this court that the’ decisions of the highest court of a State in regard to the validity or" }, { "docid": "22282268", "title": "", "text": "of federal law conceded its applicability; the court’s statement is dicta. We therefore proceed to analyze whether the federal rule or a state law governs dismissal here. In 1938, the Supreme Court departed from precedent to rule that except in matters governed by the United States Constitution or acts of Congress, federal courts must apply state law in diversity suits. Erie, 304 U.S. at 78, 58 S.Ct. at 822 (construing The Federal Judiciary Act of 1789, ch. 20, § 34, 1 Stat. 73, 92 (Rules of Decision Act) (current version at 28 U.S.C. § 1652 (1982))). The Rules of Decision Act then provided that the “laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.” Prior to Erie, the Court had interpreted the Act as requiring federal court application only of state statutes and local decisions concerning real property, not of state decisional law. Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18, 10 L.Ed. 865 (1842). Under the Swift doctrine, federal courts assumed the power in diversity suits to decide issues of common law, such as tort principles or the interpretation of contracts. See Erie, 304 U.S. at 71, 74-76, 58 S.Ct. at 818, 820-822. Erie repudiated this doctrine and held that state decisional law is entitled to respect equal to that accorded to state statutes. Id. at 78-79, 58 S.Ct. at 822-823. Neither Congress nor the federal judiciary has the constitutional power to declare substantive rules of common law for the states. Id. at 78, 58 S.Ct. at 822. Thus any application of the Rules of Decision Act which invades that substantive province must be unconstitutional. Id. at 79-80, 58 S.Ct. at 822-823. Underlying the Court’s decision was its recognition that if the plaintiff, by choosing a federal rather than state forum, could also choose to have federal law rather than state law apply, injustice and confusion would result. Id. at 74-77, 58 S.Ct." }, { "docid": "22661264", "title": "", "text": "sustain a finding that plaintiff’s injuries were caused by the negligence of defendant. It also held the question of contributory negligence one for the jury. Defendant’s petition for writ of certiorari presented two questions: Whether its duty toward plaintiff should have been determined in accordance with the law as found by the highest court of Pennsylvania, and whether the evidence conclusively showed plaintiff guilty of contributory negligence. Plaintiff contends that, as always heretofore held by this Court, the issues of negligence and contributory negligence are to be determined by general law against which local decisions may not be held conclusive; that defendant relies.on a solitary Pennsylvania case of doubtful applicability and that, even jtf the decisions of'the courts of that State were deemed controlling, the same result would have to be reached. No constitutional question was suggested or argued below or here. And as a general rule, this Court will not consider any question not raised below and presented by the petition. Olson v. United States, 292 U. S. 246, 262. Johnson v. Manhattan Ry. Co., 289 U. S. 479, 494. Gunning v. Cooley, 281 U. S. 90, 98. Here it does not decide either of the questions presented but, changing the rule of decision in force since the foundation of the Government, remands the case td be adjudged according to a standard never before deemed permissible. The opinion just announced states that “the question for decision is whether the oft-challenged doctrine of Swift v. Tyson [1842, 16 Pet. 1] shall now be disapproved.” That case involved the construction of the Judiciary Act of 1789, § 34: “The laws of the several states, except where the Constitution, treaties, or statutes of the. United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of- the United States in cases where they apply.” Expressing the view of all the members of the Court, Mr. Justice Story said (p. 18): “In the ordinary use of language it will hardly be contended that the decisions of Courts constitute laws. They are, at most," }, { "docid": "22661265", "title": "", "text": "Co., 289 U. S. 479, 494. Gunning v. Cooley, 281 U. S. 90, 98. Here it does not decide either of the questions presented but, changing the rule of decision in force since the foundation of the Government, remands the case td be adjudged according to a standard never before deemed permissible. The opinion just announced states that “the question for decision is whether the oft-challenged doctrine of Swift v. Tyson [1842, 16 Pet. 1] shall now be disapproved.” That case involved the construction of the Judiciary Act of 1789, § 34: “The laws of the several states, except where the Constitution, treaties, or statutes of the. United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of- the United States in cases where they apply.” Expressing the view of all the members of the Court, Mr. Justice Story said (p. 18): “In the ordinary use of language it will hardly be contended that the decisions of Courts constitute laws. They are, at most, only evidence of what- the laws are, and not. of themselves laws. They are often re-examined, reversed, and qualified by the Courts themselves, whenevér they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a -state are more usually understood to mean, the rules and enactments promulgated by the legislative authority thereof, or long established local customs having the force of laws. In all the various cases, which have hitherto come before us for decision, this Court have uniformly supposed, that the true interpretation of the thirty-fourth section limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles' to things having a permanent locality, such as the rights and titles to' real- estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us, that the section did apply, or was designed to apply, to questions of a more general" }, { "docid": "11489866", "title": "", "text": "ground that the facts supporting that cause of action are substantially the same as the facts supporting a not “plainly unsubstantial” cause of action for violation of the federal trade mark act. Armstrong Paint & Varnish Works v. Nu-Enamel Corp., supra, 305 U.S. at pages 324, 325, 59 S.Ct. 191, 83 L.Ed. 195; L. E. Waterman Co. v. Gordon, 2 Cir., 72 F.2d 272, 273, 274; Pure Oil Co. v. Puritan Oil Co., Inc., 2 Cir., 127 F.2d 6. It seems that the Supreme Court has not as yet applied Tompkins’ case beyond the bounds of diversity jurisdiction cases, D’Oench, Duhme & Co., Inc., v. Federal Deposit Ins. Co., 315. U.S. 447, 467, 62 S.Ct. 676, 86 L.Ed. 956. Therefore a novel question is presented: shall a United States court which has jui'isdiction over a cause of action for unfair competition only because the cause is “pendent” to a cause of action for infringement of a registered trade-mark apply federal common law or the local common law. In answering that question it is proper to take into account Section 34 of the Federal Judiciary Act of September 24, 1789, 28 U.S.C.A. § 725; intimations in opinions of Supreme Court Justices; and considerations of policy. The 1789 Judiciary Act provided that: “The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.” As used in this statute,, “laws” includes local rules of decision, Erie Railroad Co. v. Tompkins, 304 U.S. at page 73, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, note 5. But, strictly speaking, the statute applies only to “trials at common law.” Russell v. Todd, 309 U.S. 280, 287, 294, 60 S.Ct. 527, 531, 84 L.Ed. 754. Although the Supreme Court has applied the principle of the statute and of Tompkins’ case to many suits in equity, Ruhlin v. New York Life Insurance Co., 304 U.S. 202, 205, 58 S.Ct. 860, 82 L.Ed." }, { "docid": "11489867", "title": "", "text": "take into account Section 34 of the Federal Judiciary Act of September 24, 1789, 28 U.S.C.A. § 725; intimations in opinions of Supreme Court Justices; and considerations of policy. The 1789 Judiciary Act provided that: “The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.” As used in this statute,, “laws” includes local rules of decision, Erie Railroad Co. v. Tompkins, 304 U.S. at page 73, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, note 5. But, strictly speaking, the statute applies only to “trials at common law.” Russell v. Todd, 309 U.S. 280, 287, 294, 60 S.Ct. 527, 531, 84 L.Ed. 754. Although the Supreme Court has applied the principle of the statute and of Tompkins’ case to many suits in equity, Ruhlin v. New York Life Insurance Co., 304 U.S. 202, 205, 58 S.Ct. 860, 82 L.Ed. 1290; Fashion Originators Guild v. Federal Trade Comm., 312 U.S. 457, 468, 61 S.Ct. 703, 85 L.Ed. 949 (unfair competition) ; Pecheur Lozenge Co., Inc., v. National Candy Co., 315 U.S. 666, 667, 62 S.Ct. 853, 86 L.Ed. 1103 (trade-marks); it is by no means clear that it will apply the principle to all such suits. See D’Oench, Duhme & Co. v. Federal Deposit Ins, Corp., 315 U.S. 447, 467, 62 S.Ct. 676, 86 L.Ed. 956, note 3. The attitude of the different justices plainly varies. The late Mr. Justice Brandéis regarded the Constitution as denying the federal courts power to apply a federal common law to any cause of action not imbedded in a federal statute creating substantive rights, Erie Railroad Co. v. Tompkins, 304 U.S, 64, 77, 78, 80, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. While Mr. Justice Reed! disagreed with that view when it was announced, Id., 304 U.S. at pages 91-92, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, he later came close to accepting it. Ruhlin" }, { "docid": "20025008", "title": "", "text": "laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.”). Subsequent cases instruct that a federal court is to adjudicate state disputes in the same manner as a federal court resolves an evolving issue of federal law: “with the aid of such light as [is] afforded by the materials for decision at hand, and in accordance with the applicable principles for determining state law.” Salve Regina College v. Russell, — U.S. -, 111 S.Ct. 1217, 1218-19, 113 L.Ed.2d 190 (1991) (quoting Meredith v. Winter Haven, 320 U.S. 228, 238, 64 S.Ct. 7, 12-13, 88 L.Ed. 9 (1943)). In Swift v. Tyson, 16 Pet. (41 U.S.) 1, 18, 10 L.Ed. 865 (1842), the Supreme Court concluded that the Rules of Decision Act’s reference to the “laws of the several states” compelled federal courts to apply state positive law, such as statutes and constitutions. Only state decisional law interpreting local statutes was considered to fall within a state’s positive law: In all the various cases, which have hitherto come before us for decision, this Court have uniformly supposed, that the true interpretation of the thirty-fourth section limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the' construction thereof adopted by the local tribunals____ Id. at 18-19; see also C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4502, at 4-6 (2d ed. 1982 & Supp. 1991). Since it is state statutes that the court is now interpreting, even before Erie it would have been bound by state law. Erie, of course, greatly expanded the scope of federal deference to state law and predicated that expansion on constitutional requirements. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 77-78, 58 S.Ct. 817, 822-23, 82 L.Ed. 1188 (1938) (“If only a question of statutory construction were involved, we should not be prepared to abandon a doctrine" } ]

[ { "docid": "22545437", "title": "", "text": "Thus, whether or not this Court has subject matter jurisdiction in this case, the judgment of the Supreme Court of Texas should not be disturbed. None of the cases on which the Court does rely lends any support to its decision. In Pope v. Williams, 193 U. S. 621, the Court upheld a Maryland statute which required voters to have been registered in the State for at least a year. The Court said of the right to vote: “It is not a privilege springing from citizenship of the United States. ... It may not be refused on account of race, color or previous condition of servitude, but it does not follow from mere citizenship of the United States. In other words, the privilege to vote in a State is within the jurisdiction of the State itself, to be exercised as the State may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals in violation of the Federal Constitution [obviously referring to the Fifteenth and not the Fourteenth Amendment].... The question whether the conditions prescribed by the State might be regarded by others as reasonable or unreasonable is not a Federal one.” 193 U. S., at 632-633. Lassiter v. Northampton Election Bd., 360 U. S. 45, upheld the literacy test applied in North Carolina against an attack made on its face. The Court noted that: “Of course a literacy test, fair on its face, may be employed to perpetuate that discrimination which the Fifteenth Amendment was designed to uproot.” 360 U. S., at 53. (Emphasis added.) Gray v. Sanders, 372 U. S. 368, struck down Georgia's county-unit system for counting votes in a party primary election for the nomination of a United States Senator. It did not deal with voter qualifications. United States v. Classic, 313 U. S. 299, dealt with stuffing ballot boxes, and Ex parte Yarbrough, 110 U. S. 651, with intimidation of Negroes attempting to vote. Neither dealt with voter qualifications. None of the other federal cases cited by the Court was concerned in any way with" } ]

[ { "docid": "21653033", "title": "", "text": "(3) voting procedures that enhanced the opportunities for discrimination against American Indians, (4) depressed socio-economic conditions for American Indians, and (5) a tenuous justification for the at-large voting system. Accordingly, the district court held that the totality of the circumstances weighed in favor of a section 2 violation. The district court declared that the at-large voting system in Blaine County violated section 2, and enjoined the use of such an election system in the future. It also ordered the County to file an election plan that would remedy the section 2 violation. The district court subsequently adopted the County’s proposed remedial plan, which provides for three single-member districts. Blaine County does not appeal the remedy adopted by the district court. However, the County does appeal the district court’s ruling that section 2 is constitutional and declaration that Blaine County’s at-large voting scheme violated section 2. II. As originally enacted in the Voting Rights Act of 1965 (“VRA”), section 2 merely restated the prohibition contained in the Fifteenth Amendment. The VRA’s most sweeping provision was section 5, which required “covered” jurisdictions with a history of voting discrimination to preclear any change in voting practices or procedures with the United States Department of Justice. 42 U.S.C. § 1973c (1965). The 1965 Act also banned literacy tests in covered jurisdictions, and permitted the federal government to appoint federal registrars and election observers. Shortly after the VRA’s enactment, the Supreme Court held in South Carolina v. Katzen-bach that Congress constitutionally enacted section 5, the limited ban on literacy tests, and the appointment of federal monitors pursuant to its power under the Fifteenth Amendment. 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). The VRA was first amended in 1970 when Congress made the ban on literacy tests nationwide for a five-year period. Although the Supreme Court had held in Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959), that literacy tests were not unconstitutional per se, it upheld Congress’s power to enact the five-year nationwide ban on literacy tests. Oregon v. Mitchell, 400 U.S. 112," }, { "docid": "10863721", "title": "", "text": "will find it difficult to practice his religion otherwise. The Act creates such a right. This is one way to look at what Congress did, but it cannot be the only way. Whenever Congress passes a law under the authority of section 5, it creates a right. The question is whether it has exceeded its authority in creating the particular right at issue. It has not if the right is reasonably designed to secure a right created by the Fourteenth Amendment itself. The clearest examples come from the Voting Rights Act of 1965, 42 U.S.C. §§ 1973 et seq. The Supreme Court held in Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959), that literacy tests for voters do not violate the Fourteenth Amendment — whereupon Congress prohibited literacy tests for voters, 42 U.S.C. § 1973b(e), and the Court upheld the prohibition. Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). And on the same day that the Court held in Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), that at-large electoral systems which have the practical effect of preventing the election of any blacks do not violate the Fourteenth or Fifteenth Amendments, it held in City of Rome v. United States, supra, that the provision of the Voting Rights Act that authorizes the Department of Justice to veto such systems if they have an exclusionary effect is valid under the Fifteenth Amendment’s counterpart to section 5. In both sequences Congress was held to be empowered by the enforcement clauses of the Reconstruction amendments to outlaw a practice that while not unconstitutional deprived a constitutional right of practical efficacy. The legislation bore a necessary and proper relation to the underlying right. Katzenbach v. Morgan, supra, 384 U.S. at 650, 86 S.Ct. at 1723. The plaintiffs argue that RFRA bears a similar relation to the constitutional right to exercise one’s religion without interference by government. After Smith the only way to prove a violation of the iree-exercise clause is by showing that government discriminated" }, { "docid": "22367683", "title": "", "text": "in this area. No such dual-level test has ever been articulated by this Court, and I do not believe that any such approach is consistent with the purposes of the Equal Protection Clause, with the overwhelming weight of authority, or with well-established principles of federalism which underlie the Equal Protection Clause. Thus for me, applying the basic equal protection standard, the issue in this case is whether New York has shown that its English-language literacy test is reasonably designed to serve a legitimate state interest. I think that it has. In 1959, in Lassiter v. Northampton Election Bd., supra, this Court dealt with substantially the same question and resolved it unanimously in favor of the legitimacy of a state literacy qualification. There a North Carolina English literacy test was challenged. We held that there was “wide scope” for State qualifications of this sort. 360 U. S., at 51. Dealing with literacy tests generally, the Court there held: “The ability to read and write . . . has some relation to standards designed to promote intelligent use of the ballot. . . . Literacy and intelligence are obviously not synonymous. Illiterate people may be intelligent voters. Yet in our society where newspapers, periodicals, books, and other printed matter canvass and debate campaign issues, a State might conclude that only those who are literate should exercise the franchise. ... It was said last century in Massachusetts that a literacy test was designed to insure an ‘independent and intelligent’ exercise of the right of suffrage. Stone v. Smith, 159 Mass. 413-414, 34 N. E. 521. North Carolina agrees. We do not sit in judgment on the wisdom of that policy. We cannot say, however, that it is not an allowable one measured by constitutional standards.” 360 U. S, at 51-53. I believe the same interests recounted in Lassiter indubitably point toward upholding the rationality of the New York voting test. It is true that the issue here is not so simply drawn between literacy per se and illiteracy. Appellant alleges that she is literate in Spanish, and that she studied American history and" }, { "docid": "21296592", "title": "", "text": "years, the Supreme Court has considered many cases involving various aspects of the right to vote. “[S]ince the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 626, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969). The Court’s concern with these difficult issues is understandable, though the resulting array of opinions deciding disparate voting issues can be difficult to apply in a new context. This case concerns a State’s eligibility requirement for voting. Historically, deciding who is qualified to vote has been a relatively unfettered prerogative of the sovereign States. See Rodriguez v. Popular Democratic Party, 457 U.S. 1, 9, 102 S.Ct. 2194, 72 L.Ed.2d 628 (1982) (“the right to vote, per se, is not a constitutionally protected right”). “The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised ... absent of course the discrimination which the Constitution condemns.” Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50-51, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959) (upholding a race-neutral literacy test because literacy “has some relation to standards designed to promote intelligent use of the ballot”). More recent decisions have given varying degrees of “close constitutional scrutiny” to voter eligibility requirements under the Equal Protection Clause, invalidating many, but not all. See Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) .(poll tax invalid because “[w]ealth, like race ... is not germane to one’s ability to participate intelligently in the electoral process”); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) (categorical disenfranchisement of residents in the military invalid); Kramer, 395 U.S. at 632-33, 89 S.Ct. 1886, and Cipriano v. City of Houma, 395 U.S. 701, 704-706, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969) (limiting right to vote in local elections to those with special interests" }, { "docid": "8199195", "title": "", "text": "eighteen-year-olds for all federal elections, to set residency requirements and provide for absentee balloting in elections for presidential and vice presidential electors, and to prohibit the use of literacy tests or other devices used to discriminate against voters on account of their race in both federal and state elections. There are passages from certain of the various opinions entered in Oregon v. Mitchell, supra, making reference to the power of the states to determine the qualifications of their own voters for state and local offices. That the states have this power is beyond cavil and is certainly not herein denied. We hold only that the power of the states to set voter qualifications is subject to the fourteenth amendment. This holding is strengthened by the separate opinion of Mr. Justice Brennan in which he said: “But it is now settled that exercise of this power, like all other exercises of state power, is subject to the Equal Protection Clause of the Fourteenth Amendment. Carrington v. Rash [380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675] supra; Harper v. Virginia [State] Board of Elections, 383 U.S. 663 [86 S.Ct. 1079, 16 L.Ed.2d 169] (1966); Kramer v. Union Free School District, 395 U.S. 621 [89 S.Ct. 1886, 23 L.Ed.2d 583] (1969); Evans v. Cornman, 398 U.S. 419 [90 S.Ct. 1752, 26 L.Ed.2d 370] (1970). * * * “The right to vote has long been recognized as a ‘fundamental political right, because preservative of all rights.’ Yick Wo v. Hopkins, 118 U.S. 356, 370 [6 S.Ct. 1064, 30 L.Ed. 220] (1886); see Reynolds v. Sims, 377 U.S. 533, 562 [84 S.Ct. 1362, 12 L.Ed. 2d 506] (1964); Williams v. Rhodes, 393 U.S. 23, 31 [89 S.Ct. 5, 21 L.Ed.2d 24] (1968). ‘Any unjustified discrimination in determining who may participate in political affairs undermines the legitimacy of representative government.’ Kramer v. Union Free School District, 395 U.S., at 626 [89 S.Ct., at 1889]. Consequently, when exclusions from the franchise are challenged as violating the Equal Proteetion Clause, judicial scrutiny is not confined to the question whether the exclusion may reasonably be thought to further" }, { "docid": "5389899", "title": "", "text": "Act was likely unless discriminatory effects could be taken as conclusive evidence of purpose. Such a conclusion would comport with Congress’s broad tactic, in the Voting Rights Act, of “shiftpng] the advantage of time and inertia from the perpetrators of the evil to its victims.” South Carolina v. Katzenbach, supra, 383 U.S. at 328, 86 S.Ct. at 818. Viewed most narrowly, then, section 5 of the Act simply represents an exercise by Congress, based on facts found during an exhaustive investigation, of its power to establish standards of proof for facts which are admittedly Fifteenth Amendment violations. In effect, Congress can be said to have instructed the courts that the existence of racially disproportionate impact raises an irrebuttable presumption of invidious purpose. We can see no constitutional impediment to Congress’ taking such an approach. See South Carolina v. Katzenbach, supra, 383 U.S. at 330, 86 S.Ct. 803. This conclusion finds support in the Court’s treatment of the Voting Rights Act’s ban on literacy tests and other voter qualifications. In Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959), a case decided prior to enactment of the Voting Rights Act, the Court held that literacy tests and related devices were not per se violative of the Fifteenth Amendment, although “[o]f course a literacy test, fair on its face, may be employed to perpetuate that discrimination which the Fifteenth Amendment was designed to uproot.” Id. at 53, 79 S.Ct. at 991. Without disavowing Lassiter, the Court in South Carolina v. Katzenbach, supra, held that Congress had power to suspend the operation of such tests within jurisdictions subject to the Act. And in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), the Court unanimously upheld Congress’ subsequent suspension of literacy tests on a nationwide basis. These cases, we think, present a substantial analogy to the present challenge. In Lassiter, the Court in effect held that although use of a literacy test does not per se contravene the Fifteenth Amendment, it at least raises a legitimate inference of such a violation." }, { "docid": "8425513", "title": "", "text": "to vote in elections conducted in a language many of them do not understand. Puerto Ricans are not required, as are immigrants from foreign countries, to learn English before they have the right to vote as U.S. citizens. Their plight is as much a result of government policy as is the plight of Negroes trying to pass literacy tests in states which had subjected them to segregated, unequal school systems. Cf. Gaston County v. United States, 395 U.S. 285, 89 S.Ct. 1720, 23 L.Ed.2d 309 (1969). Congress responded to the inequities caused by literacy tests by outlawing them in states with low percentages of registrants or voters. Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. In the same act, Congress buttressed the right of Puerto Ricans to vote in the following language: Congress hereby declares that to secure the rights under the fourteenth amendment of persons educated in, American-flag schools in which the predominant classroom language was other than English, it is necessary to prohibit the States from conditioning the right to vote of such persons on ability to read, write, understand, or interpret any matter in the English language. 42 U.S.C. § 1973b(e) (1). The Supreme Court upheld the constitutionality of this provision in Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). Section 4(e)(2) of the 1965 act allows the states with valid literacy tests to continue using them, but prevents their application to any person who completed sixth grade (or whatever grade is presumptive of literacy under the state law) in a Puerto Rican public school. The 1970 amendment extends the ban on literacy tests to all states until August 6, 1975. 42 U.S.C. § 1973aa. This provision was upheld in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970). The combined effect of the 1965 act and the 1970 amendment is to prohibit the states from conditioning the right to vote of persons who attended any number of years of school in Puerto Rico on their ability to read or understand the English language. The" }, { "docid": "22953811", "title": "", "text": "the Fourteenth Amendment. By virtue of the Supremacy Clause, Article IV of the Constitution, the states are now prohibited from conditioning the right to vote upon a showing of literacy in the English language to those persons who have successfully completed the sixth primary grade in any public or private school accredited by any State or territory or by the Commonwealth of Puerto Rico in which the predominant classroom language was other than English. In accord with Morgan, the State has assured the Court that the Voting Rights Act of 1965 is directly implemented in New York, so that anyone educated through the sixth grade in an American-flag school is permitted to register to vote in all elections, State and local, general and primary, and is eligible to sign petitions of all kinds, including independent nominating petitions. Plaintiffs nevertheless seek a ruling that it is constitutionally impermissible to condition the right to vote upon a showing of literacy in the English language. We decline to do so. In Lassiter v. Northampton County Election Bd., 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959), the Supreme Court directly upheld the constitutionality of a North Carolina requirement that voters be literate in the English language. In so doing, the Court noted the wide scope in which a state can exercise its jurisdiction over voter qualifications, subject only to constitutional limitations. The question of literacy in another language was not, however, raised therein. It must also be noted that in sanctioning this requirement, the Court applied the “rationality” test which was subsequently revised in voting rights suits which present equal protection arguments to a “compelling state interest” test. Kramer v. Union Free School District, supra; Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). While the adoption of the compelling state interest test places the continued viability of Lassiter in question, in view of the fact that the Court failed to rule the New York literacy test unconstitutional in both Morgan and" }, { "docid": "2478184", "title": "", "text": "59 L.Ed. 1340), save as such legislation might contravene the Fourteenth and Fifteenth Amendments (Breedlove v. Suttles, 1937, 302 U.S. 277, 58 S.Ct. 205, 82 L.Ed. 252). States are free to establish standards of eligibility to vote which do not contravene a constitutional prohibition. The following state requirements have been held to be constitutionally valid if equally applied to all who reside within the state: absence of criminal conduct, Davis v. Beason, 1890, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637; residency within the state for a designated period, Pope v. Williams, 1904, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817; successful passing of a literacy test, Lassiter v. Northampton Co. Board of Elections, 1959, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072; Trudeau v. Barnes, 5 Cir., 1933, 65 F.2d 563; Guinn v. U. S., supra; payment of a poll tax, Breedlove v. Suttles, supra. In the Lassiter case, supra, the court, dealing with the constitutionality of a North Carolina statute requiring ability to read and write any section of the Constitution of North Carolina in the English language, said as follows: “We do not suggest that any standards which a State desires to adopt may be required of voters. But there is wide scope for exercise of its jurisdiction. Residence re quirements, age, previous criminal record (Davis v. Beason, 133 U.S. 333, 345-347 [10 S.Ct. 299, 301-302, 33 L.Ed. 637]) are obvious examples indicating factors which a State may take into consideration in determining the qualifications of voters. The ability to read and write likewise has some relation to standards designed to promote intelligent use of the ballot. Literacy and illiteracy are neutral on race, creed, color, and sex, as reports around the world show. Literacy and intelligence are obviously not synonymous. Illiterate people may be intelligent voters. Yet in our society where newspapers, periodicals, books, and other printed matter canvass and debate campaign issues, a State might conclude that only those who are literate should exercise the franchise.” [360 U.S. 45, 79 S.Ct. 990.] While this case discussed the provision in the North Carolina" }, { "docid": "8199187", "title": "", "text": "supported by testimony of Dr. Clifton McClesky, Professor of Government, University of Texas at Austin, and in the testimony of Martin Dies, presently the Secretary of State of Texas. Defendants contend that the purposes of these provisions are to prevent election fraud and to insure that only those citizens which have the greatest amount of interest in elections will vote. Defendants further contend that Article VI, Section 2, V.A.T.C. and Article 5.11a, V.A.T.S. Election Code are reasonably related to these purposes. The reasonable relationship test, traditionally applied to determine whether a particular statute denies equal protection, has no bearing on this suit. Since 1965, the Supreme Court has held that statutes which place limitations upon the right to vote can be upheld only upon a showing that they are necessary to promote a compelling state interest. City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969). In Kramer, sUpra, a New York statute requiring that voters in school elections either own real property or have a child in school was invalidated as not necessary to the promotion of a compelling state interest. There, the logic behind the compelling state interest test was presented in the following terms: “[T]he deference usually given to the judgment of legislators does not extend to decisions concerning which resident citizens may participate in the election of legislators and other public officials. Those decisions must be carefully scrutinized by the Court to determine whether each resident citizen has, as far as is possible, an equal voice in the selections. Accordingly, when we are reviewing statutes which deny some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a ‘rational basis’ for the distinctions made are not applicable. See Harper v. Virginia [State] Bd. of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 1083," }, { "docid": "21296593", "title": "", "text": "suffrage may be exercised ... absent of course the discrimination which the Constitution condemns.” Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50-51, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959) (upholding a race-neutral literacy test because literacy “has some relation to standards designed to promote intelligent use of the ballot”). More recent decisions have given varying degrees of “close constitutional scrutiny” to voter eligibility requirements under the Equal Protection Clause, invalidating many, but not all. See Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) .(poll tax invalid because “[w]ealth, like race ... is not germane to one’s ability to participate intelligently in the electoral process”); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) (categorical disenfranchisement of residents in the military invalid); Kramer, 395 U.S. at 632-33, 89 S.Ct. 1886, and Cipriano v. City of Houma, 395 U.S. 701, 704-706, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969) (limiting right to vote in local elections to those with special interests invalid); Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970) (disenfranchising residents of a federal enclave invalid); compare Dunn v. Blumstein, 405 U.S. 330, 360, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (one year and three-month durational residence requirements invalid), with Marston v. Lewis, 410 U.S. 679, 93 S.Ct. 1211, 35 L.Ed.2d 627 (1973) (fifty-day durational residence requirement valid). By contrast, in Richardson v. Ramirez, 418 U.S. 24, 55, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974), the Court rejected a challenge to California laws denying ex-felons the right to vote in part because the Equal Protection Clause of § 1 of the Fourteenth Amendment “could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for other forms of disenfranchisement.” 1. The essential factual predicate for plaintiffs’ facial attack on the Missouri constitutional and statutory provisions at issue is the assertion that an order appointing a full guardian for a Missouri ward found to" }, { "docid": "22953810", "title": "", "text": "qualified voters, but who had no knowledge whatever as to the true identity or residence of the signers because they were total strangers, did not “know” the signers as required by Section 135 of the Election Law. This ruling, which would be applicable to Section 138(3), apparently establishes that the witness has acted upon information affording him reasonable knowledge as to the identity of the signers when he simply inquires and is assured that the signers are residents of the area and duly qualified voters. Under this interpretation, which plaintiffs are of course content to accept, Section 138(3) is constitutionally valid. Plaintiffs’ fourth challenge is presented against the literacy requirements embodied in Section 168 of the Election Law. This statute was last amended in 1965, prior to the decision of the Supreme Court in Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). Therein, the Court sustained the constitutionality of Section 4(e) of the Voting Rights Act of 1965, 42 U.S.C. § 1973b(e), as a permissible exercise of Congressional power under the Fourteenth Amendment. By virtue of the Supremacy Clause, Article IV of the Constitution, the states are now prohibited from conditioning the right to vote upon a showing of literacy in the English language to those persons who have successfully completed the sixth primary grade in any public or private school accredited by any State or territory or by the Commonwealth of Puerto Rico in which the predominant classroom language was other than English. In accord with Morgan, the State has assured the Court that the Voting Rights Act of 1965 is directly implemented in New York, so that anyone educated through the sixth grade in an American-flag school is permitted to register to vote in all elections, State and local, general and primary, and is eligible to sign petitions of all kinds, including independent nominating petitions. Plaintiffs nevertheless seek a ruling that it is constitutionally impermissible to condition the right to vote upon a showing of literacy in the English language. We decline to do so. In Lassiter v. Northampton County Election Bd., 360" }, { "docid": "22953812", "title": "", "text": "U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959), the Supreme Court directly upheld the constitutionality of a North Carolina requirement that voters be literate in the English language. In so doing, the Court noted the wide scope in which a state can exercise its jurisdiction over voter qualifications, subject only to constitutional limitations. The question of literacy in another language was not, however, raised therein. It must also be noted that in sanctioning this requirement, the Court applied the “rationality” test which was subsequently revised in voting rights suits which present equal protection arguments to a “compelling state interest” test. Kramer v. Union Free School District, supra; Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). While the adoption of the compelling state interest test places the continued viability of Lassiter in question, in view of the fact that the Court failed to rule the New York literacy test unconstitutional in both Morgan and Cardona v. Power, 384 U.S. 672, 86 S.Ct. 1728, 16 L.Ed.2d 848 (1966), and that the Court presently has pending before it an appeal from a decision of a three-judge statutory court which upheld a state English language literacy requirement, Mexican-American Federation-Washington State v. Naff, 299 F.Supp. 587 (E.D.Wash.1969) , prob. juris, noted, sub nom. Jimenez v. Naff, 397 U.S. 1005, 90 S.Ct. 1245, 25 L.Ed.2d 418 (U.S., March 31, 1970) , we do not feel justified in hold-mg the New York test unconstitutional until the Supreme Court instructs us that Lassiter is no longer the law. We next consider the contention by plaintiffs in the S.L.P. action that Section 376(5) of the Election Law violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Sections 376(5) and 2(4), when taken together, provide that lists of registered voters be ■ delivered free of charge to the county chairmen of each political party polling at least 50,000 votes for governor in the last preceding gubernatorial election. Section 376(5) further requires that at least twelve" }, { "docid": "12516472", "title": "", "text": "or partially depriving functionally illiterate Texas voters of their fundamental right to vote in violation of the Due Process Clause. For the reasons set out below, we agree with plaintiffs’ claim of discrimination under the Equal Protection Clause and grant declaratory relief. I. EQUAL PROTECTION The Supreme Court has long recognized that voting is “ * * * a fundamental political right, because preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). While the states have long been held to have broad powers to determine the conditions under which the right to vote may be exercised, Lassiter v. Northhampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1958), once the states grant the franchise, they must not do so in a discriminatory manner. Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). Because of the overriding importance of voting rights, classifications that “ * * * might invade or restrain them must be closely scrutinized and carefully confined * * * ” where those rights are asserted under the Equal Protection Clause, especially where lines are drawn on the basis of wealth or race. Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). The test to be applied has been concisely stated, in another context by Mr. Justice Harlan: The matrix of recent “equal protection” analysis is that the “rule that statutory classifications which either are based on certain ‘suspect’ criteria, or affect ‘fundamental rights’ will be held to deny equal protection unless justified by a ‘compelling’ governmental interest,” * * * Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (June 29, 1970) (concurring opinion). Thus, in cases questioning the validity of laws conditioning exercise of the right to vote upon the ownership of property or the payment of taxes, the Court has found no such compelling interest attaching to elections concerning public school issues, Kramer" }, { "docid": "22953813", "title": "", "text": "Cardona v. Power, 384 U.S. 672, 86 S.Ct. 1728, 16 L.Ed.2d 848 (1966), and that the Court presently has pending before it an appeal from a decision of a three-judge statutory court which upheld a state English language literacy requirement, Mexican-American Federation-Washington State v. Naff, 299 F.Supp. 587 (E.D.Wash.1969) , prob. juris, noted, sub nom. Jimenez v. Naff, 397 U.S. 1005, 90 S.Ct. 1245, 25 L.Ed.2d 418 (U.S., March 31, 1970) , we do not feel justified in hold-mg the New York test unconstitutional until the Supreme Court instructs us that Lassiter is no longer the law. We next consider the contention by plaintiffs in the S.L.P. action that Section 376(5) of the Election Law violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Sections 376(5) and 2(4), when taken together, provide that lists of registered voters be ■ delivered free of charge to the county chairmen of each political party polling at least 50,000 votes for governor in the last preceding gubernatorial election. Section 376(5) further requires that at least twelve copies of these lists be available for public inspection at each main or branch office of the board of elections, and that surplus copies be sold to anyone requesting them at a price not to exceed the cost of reproduction. It is clear that the effect of these provisions, when considered with other sections of the Election Law, is to deny independent or minority parties which have succeeded in gaining a position on the ballot but which have not polled 50,-000 votes for governor in the last preceding gubernatorial election an equal opportunity to win the votes of the electorate. The State has shown no compelling state interest nor even a justifiable purpose for granting what, in effect, is a significant subsidy only to those parties which have least need therefor. See Madole v. Barnes, 20 N.Y.2d 169, 282 N.Y.S.2d 225, 229 N.E.2d 20 (1967). In opposition to plaintiffs’ contention, the State argues that “[o]ne can readily imagine the heavy burden and expense that would be placed upon the State if it were required to" }, { "docid": "23097520", "title": "", "text": "civil rights and the equal protection of the laws against state denial or invasion, if not prohibited, ____” Ex parte Virginia, 100 U.S. at 345-46. Congress may invalidate the perpetuation of earlier purposeful discrimination, and act to eradicate the continuing effects of that discrimination. City of Rome, 446 U.S. at 176-77, 100 S.Ct. at 1561-62. Congress has prohibited a variety of voting practices not necessarily prohibited directly by the Constitution, and the Supreme Court has upheld these exercises of the enforcement power. In South Carolina v. Katzenbach, 1966, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769, the Court upheld a suspension of literacy tests in specific jurisdictions. In Katzenbach v. Morgan, 1966, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828, the Court upheld a prohibition on the use of English literacy tests to disenfranchise citizens educated in Puerto Rico. In Oregon v. Mitchell, 1970, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272, the Court unanimously upheld a nationwide ban on literacy tests and by an 8-1 margin upheld limitations on residency requirements in presidential elections. In South Carolina v. Katzenbach and again in City of Rome the Court upheld the preclearance provisions of the Voting Rights Act, which require federal review of all changes in voting practices in certain jurisdictions and require the Attorney General to object to any change that is discriminatory either in purpose or effect. The 1982 amendment to section 2 of the Voting Rights Act is clearly within the enforcement power. Congress conducted extensive hearings and debate on all facets of the Voting Rights Act and concluded that the “results” test was necessary to secure the right to vote and to eliminate the effects of past purposeful discrimination. The Senate Report explains in detail why the results test was necessary and appropriate. In particular, Congress found “(1) that the difficulties faced by plaintiffs forced to prove discriminatory intent through case-by-case adjudication create a substantial risk that intentional discrimination barred by the Fourteenth and Fifteenth Amendments will go undetected, uncorrected and undeterred unless the results test proposed for section 2 is adopted; and (2)" }, { "docid": "8011124", "title": "", "text": "of constitutional magnitude.” Id. at 513. Rejecting the state’s argument, the district court relied heavily on Morgan. Specifically, the district court made much of the fact that the Supreme Court declined to overrule Lassiter v. Northampton Elections Bd., 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959) (Lassiter), and, “despite the statute’s vitiation of Lassi-ter, sustained the constitutionality of section 4(e) of the Voting Rights Act.” Belgard, 883 F.Supp. at 514. The district court, seizing upon the substantive or second Morgan theory, stated that the Supreme Court’s alternate rationale for sustaining § 4(e) was “a legislative judgment that the literacy requirement violated the Equal Protection Clause per se.” Id. Because of this apparent direct conflict between Lassiter and § 4(e), the district court concluded that Congress had the power to “expressly disagree with the Court as to the reach of constitutional rights.” Id. (citation omitted). I believe the district court in Belgard read the scope of the Morgan holding too broadly. To properly understand the limits of the substantive or second Morgan theory, I revisit Lassiter. In that case, the plaintiffs brought only a facial challenge to a North Carolina literacy requirement nearly identical to the New York requirement in Morgan. As noted in Belgard, the Court concluded that “ ‘literacy and illiteracy are neutral on race.’” Id. at 515 (quoting Lassiter, 360 U.S. at 51, 79 S.Ct. at 990). However, the Lassiter Court importantly noted: “Of course a literacy test, fair on its face, may be employed to perpetuate that discrimination which the Fifteenth Amendment was designed to uproot. No such influence is charged here.” 360 U.S. at 53, 79 S.Ct. at 991. The Lassiter holding did not preclude the possibility that a constitutional challenge to the application of the North Carolina literacy requirement might not be successful. See Katzenbach, 383 U.S. at 333, 86 S.Ct. at 821. This sheds considerable light on the substantive or second Morgan theory of § 5 power. The Supreme Court simply noted that, under § 5, Congress could examine the effect of, and the policy decisions behind, a literacy requirement and determine" }, { "docid": "8425514", "title": "", "text": "vote of such persons on ability to read, write, understand, or interpret any matter in the English language. 42 U.S.C. § 1973b(e) (1). The Supreme Court upheld the constitutionality of this provision in Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). Section 4(e)(2) of the 1965 act allows the states with valid literacy tests to continue using them, but prevents their application to any person who completed sixth grade (or whatever grade is presumptive of literacy under the state law) in a Puerto Rican public school. The 1970 amendment extends the ban on literacy tests to all states until August 6, 1975. 42 U.S.C. § 1973aa. This provision was upheld in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970). The combined effect of the 1965 act and the 1970 amendment is to prohibit the states from conditioning the right to vote of persons who attended any number of years of school in Puerto Rico on their ability to read or understand the English language. The meaning qf “the right to vote” is the critical analysis in this case. Defendants believe it is the right to enter a voting booth and cast a ballot. Plaintiffs urge a broader definition of “the right to vote,” based on several three-judge-court cases involving illiterate voters. In Garza v. Smith, 320 F.Supp. 131 (W.D.Tex.1970), vacated and remanded for appeal to 5th Circuit, 401 U.S. 1006, 91 S.Ct. 1257, 28 L.Ed.2d 542, appeal dismissed for lack of jurisdiction, 450 F.2d 790 (5th Cir. 1971), the court rejected a narrow definition of “the right to vote.” It “additionally includes the right to be informed as to which mark on the ballot, or lever on the voting machine, will effectuate the voter’s political choice.” 320 F.Supp. at 136. The court found a denial of equal protection in a statute which allowed assistance to blind or physically infirm voters, but denied it to illiterates. An illiterate voter can only perform an empty ritual if he does not have “the right to be informed of the effect that a given" }, { "docid": "1142526", "title": "", "text": "the Equal Protection Clause.” Morgan, 384 U.S. at 648, 86 S.Ct. at 1722. The Court having upheld a similar North Carolina literacy requirement against a Fifth and Fourteenth amendment challenge in Lassiter v. Northampton Election Bd., 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959), Katzenbach argued that the judiciary had reached the opposite conclusion and that section 4(e) was therefore unconstitutional. The Morgan Court disagreed. Significantly for present purposes, the Court declined to overrule Lassiter and, despite the statute’s vitiation of Lassiter, sustained the constitutionality of section 4(e) of the Voting Rights Act. Justice Brennan, writing for the seven-justice majority, concluded that Congress could have found that section 4(e) was a remedial measure necessary to enforce the Equal Protection Clause, insofar as nullification of the English literacy requirement would lead to greater voting rights for Puer-to Ricans in New York and in turn facilitate their attainment of other rights. The Court instructed: It is for Congress to assess and weigh the various conflicting considerations — the risk or pervasiveness of the discrimination in government services, the effectiveness of eliminating the state restriction on the right to vote as a means of dealing with the evil, the adequacy or availability of alternative remedies, and the nature and significance of the state interests that would be affected by the nullification of the English literacy requirement as applied to residents who have successfully completed ■ the sixth grade in a Puerto Rican school. Id. at 653, 86 S.Ct. at 1725. More significantly for present purposes, the Court offered an alternative congressional rationale sufficient to sustain section 4(e) — a legislative judgment that the literacy requirement violated the Equal Protection Clause per se. See Paul Brest, Congress as Constitutional Decisionmaker and Its Power to Counter Judicial Doctrine, 21 Ga.L.Rev. 57, 71 (1986) (“Countering the Court”). In offering this second rationale, Justice Brennan found a congressional “prerogative to weigh ... competing considerations” as part of an inquiry more constitutional than factual in nature. Morgan, 384 U.S. at 656, 86 S.Ct. at 1726. This inquiry asks whether “the application of New York’s literacy requirement" }, { "docid": "20555553", "title": "", "text": "relation” test has consistently been applied. “The States have long been held to have broad powers to determine the conditions under which the right of suffrage may. be exercised.” Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 50, 79 S.Ct. 985, 989, 3 L.Ed.2d 1072 (1959) “Texas has unquestioned power to impose reasonable residence restrictions on the availability of the ballot. Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817. There can be no doubt either of the historic function of the States to establish, on a nondiscriminatory basis, and in accordance with the Constitution, other qualifications for the exercise of the franchise.” Carrington v. Rash, 380 U.S. 89, 91, 85 S.Ct. 775, 777, 13 L. Ed.2d 675 (1965). See, e. g., Evans v. Cornman, 398 U.S. 419, 421, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970); Kramer v. Union Free School District, 395 U.S. 621, 625, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Harper v. Virginia State Board of Elections, 383 U.S. 663, 666-667, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). Because Ohio’s one-year residency requirement for voting impinges up on no federal constitutional right to vote in state and local elections, there being none, we must apply the “rational relation” test to it. We find that the one-year residency requirement is not unreasonable, and that it is rationally related to promoting a legitimate state interest. Legitimate state interests that could be promoted by such a requirement are: ensuring that those who vote for state and local representatives are familiar with the political candidates and issues, by having been given maximum exposure to the problems of the locality through the media of local communication; preventing individuals, motivated only by a desire to affect the state’s election results, from “moving” into the state shortly before the election is held, voting, and then returning to their foreign domicile; ensuring that the electors have genuine interests in community affairs. The lines drawn by the distinctions are not infallible, but they need not be, so long as they are rationally related to these interests. McGowan v. Maryland, supra. This" } ]

[ { "docid": "13681638", "title": "", "text": "personnel file was harmless beyond a reasonable doubt. 3. The right to silence. On appeal Calise presses the point made in his motion for mistrial that it was error to permit testimony about his reluctance to speak with Agent Whiteley over the telephone. Calise was not in custody so Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), does not apply. The evidence was offered in the prosecution’s ease-in-chief, so Brecht v. Abrahamson, — U.S.-,-, 113 S.Ct. 1710, 1716-17, 123 L.Ed.2d 363 (April 21, 1993), does not apply. Although it is permissible for the prosecution to comment on a defendant’s pre-arrest silence for impeachment purposes, see id. at-, 113 S.Ct. at 1716, citing Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86 (1980), the use of noncustodial silence to prove a case-in-chief has not been passed on by this circuit. Other circuits have divided. Compare United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir.1991) (pre-custodial silence admissible); with Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir.), cert. denied, 493 U.S. 969, 110 S.Ct. 418, 107 L.Ed.2d 383 (1989); United States v. Caro, 637 F.2d 869, 876 (2d Cir.1981); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1018 (7th Cir.1987); United States v. Burson, 952 F.2d 1196, 1200-01 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1702, 118 L.Ed.2d 411 (1992). We need not decide the issue here because the trial court instructed the jury that “Calise had every right not to speak with this agent or any other agent and no negative inference can be taken by you against him if in fact you find that he did not wish to speak to him.” As to Calise’s objection to the testimony about his refusal to sign the Miranda waiver, there was no objection at trial nor was the admission of this testimony plain error. The prosecution was obligated to show that the ATF read Calise his rights and that Calise waived those rights as a foundation for the admission of the interrogation. United States v. Smith," } ]

[ { "docid": "13032509", "title": "", "text": "years. “An early exposition of the rule is the maxim of Pope Boniface VIII: ‘Qui tacet, consentiré videtur,’ or ‘He who is silent shows agreement’.” 5 Pope Boniface VIII, Book of Decretals, ch. 12 § 43 (c. 1300). United States v. Cook, 48 MJ 236, 241 n.1 (1998)(Crawford, J., dissenting). Certainly silence is ambiguous. But many courts have recognized that absent a Miranda warning, silence may be admitted. The Supreme Court has addressed the issue of pre-arrest silence and post-arrest silence, absent Miranda warnings. While federal courts are split on the admission of silence as substantive evidence, some have allowed prosecutors to comment on such evidence. In Jenkins v. Anderson, 447 U.S. 231, 238, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), and Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982)(per curiam), the Court held that absent Miranda warnings, pre-arrest or post-arrest silence may be used to impeach a defendant. In Jenkins, the defendant, who was indicted for murder, claimed that he acted in self-defense. Jenkins, 447 U.S. at 233, 100 S.Ct. 2124. At trial, the prosecution cross-examined Jenkins about his failure to explain his version of events to the police for at least two weeks. Id. The prosecutor also referred to the defendant’s previous silence in his closing argument. Id. at 234, 100 S.Ct. 2124. On appeal the Supreme Court held that the Fifth Amendment, supra, was not violated by the prosecutor’s use of the defendant’s prearrest silence to impeach his credibility. Id. at 238, 100 S.Ct. 2124. The Court expressly noted that it did “not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment.” Id. at 236 n. 2, 100 S.Ct. 2124. Justice Stevens, concurring in the judgment, commented that he “would reject [the defendant’s] Fifth Amendment claim because the privilege against compulsory self-incrimination is simply irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak.” Id. at 241,100 5. Ct. 2124 (footnote omitted). Likewise, Justice Stevens noted that under his approach, “assuming relevance, the evidence could have been" }, { "docid": "8750056", "title": "", "text": "answering these questions after having knowingly received proper Miranda warnings, Pando waived his right to have the entire conversation, including the implicit references to his silence contained therein, used against him as substantive evidence of guilt. See, e.g., United States v. Burns, 276 F.3d 439, 442 (8th Cir.2002) (holding that evidence of defendant’s silence and refusal to answer post-arrest questions is admissible because they were “part of an otherwise admissible conversation” pursuant to defendant’s Miranda waiver); see also United States v. Goldman, 563 F.2d 501, 503 (1st Cir.1977) (“A defendant cannot have it both ways. If he talks, what he says or omits is to be judged on its merits or demerits, and not on some artificial standard that only the part that helps him can be later referred to. This was not a case where the government commented upon ... a prior exercise of rights. The government asked the jury to measure what the defendant said when he had no rights because he had voluntarily waived them.”). In short, by knowingly, intelligently, and voluntarily waiving his Miranda rights and then answering questions about his silence, Pando cannot be said to have been exercising his privilege against self-incrimination at that time. Accordingly, we conclude that the admission of such evidence of silence at trial did not violate Pando’s Fifth Amendment privilege against self-incrimination. IV. CONCLUSION For these reasons, the district court’s judgment of conviction is AFFIRMED. . The issue has also split the circuit courts. The Ninth, Tenth, and D.C. Circuits hold that the use of post-arrest, pre-Miranda silence as substantive evidence of guilt violates the Fifth Amendment. See United States v. Velarde-Gomez, 269 F.3d 1023, 1028-30 (9th Cir.2001) (en banc); United States v. Whitehead, 200 F.3d 634, 637-39 (9th Cir.2000); United States v. Burson, 952 F.2d 1196, 1201 (10th Cir.1991); United States v. Moore, 104 F.3d 377, 384-90 (D.C.Cir.1997). The First, Sixth, and Seventh Circuits go even further and hold that the use of pre-arrest silence as substantive evidence of guilt is impermissible under the Fifth Amendment. See Coppola v. Powell, 878 F.2d 1562, 1567-68 (1st Cir.1989); Combs v." }, { "docid": "5512026", "title": "", "text": "when a defendant who testifies in his own defense is impeached with his prior silence.” Id. at 235, 100 S.Ct. 2124. Jen kins’s holding was premised on the principle that a defendant who “takes the stand in his own behalf ... does so as any other witness, ... subject to cross-examination impeaching his credibility,” even if that cross-examination relies on evidence that might otherwise be inadmissible under the Fifth Amendment. Id. at 235-36, 100 S.Ct. 2124 (internal quotation marks omitted). The Jenkins Court therefore expressly left open the question of “whether or under what circumstances prearrest silence may be protected by the Fifth Amendment,” id. at 236 n. 2, 100 S.Ct. 2124, and, in turn, the extent to which the government may rely on such silence when a defendant does not waive his Fifth Amendment rights by testifying at trial. As the government here has observed, at the time this appeal was briefed and argued, the Federal Courts of Appeals were divided over whether a defendant’s prearrest silence could be introduced as part of the government’s case in chief without violating the Fifth Amendment protection against self-incrimination. Compare Combs v. Coyle, 205 F.3d 269, 286 (6th Cir.2000) (where defendant “clearly invoked the privilege against self-incrimination ... the prosecutor’s comment on [his] prearrest silence in its case in chief and the trial court’s instruction permitting the jury to use [the defendant’s] silence as substantive evidence of guilt violated [his] Fifth Amendment rights”); United States v. Burson, 952 F.2d 1196, 1201 (10th Cir.1991) (“[0]nce a defendant invokes his' right to remain silent, it is impermissible for the prosecution to refer to any Fifth Amendment rights which defendant exercised.”); Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir.1989) (the government’s affirmative use of defendant’s ' prearrest invocation of Fifth Amendment rights was unconstitutional); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1015, 1017 (7th Cir.1987) (introduction of officer’s testimony that defendant said “he didn’t want to make any statements” violated the Fifth ■ Amendment); with United States v. Oplinger, 150 F.3d 1061, 1065-67 (9th Cir.1998) (admission of testimony regarding defendant’s reaction" }, { "docid": "13039828", "title": "", "text": "II. Defendant next argues that the trial court erred in allowing the prosecutor to impeach Defendant with her silence during the Inn’s internal investigation. At trial, Defendant testified that she had substituted the checks for cash but had immediately put the cash in the Inn’s safe. On cross-examination, the district court permitted the prosecutor to ask Defendant why she did not offer this explanation to Tribal officials and the Tribe’s attorney during the internal investigation. Defendant argues that her failure to offer an explanation before the tribal leaders and the tribe’s attorney was an exercise of her Fifth Amendment right to remain silent and therefore an improper basis for impeachment. See Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976) (prosecutor may not impeach defendant on his silence after defendant was in custody and had been read his Miranda rights); United States v. Burson, 952 F.2d 1196, 1201 (10th Cir.1991), cert. denied, — U.S. - 112 S.Ct. 1702, 118 L.Ed.2d 411 (1992) (prosecutor may not address in casein-chief defendant’s pre-arrest refusal to speak to government criminal investigators). It is well-established that a prosecutor may use a defendant’s pre-arrest silence to impeach the defendant’s credibility. Jenkins v. Anderson, 447 U.S. 231, 238-40, 100 S.Ct. 2124, 2129-30, 65 L.Ed.2d 86 (1980). See also Burson, 952 F.2d at 1201 (acknowledging that although general rule of law is that once defendant invokes his right to remain silent it is impermissible for prosecution to refer to that silence, there are exceptions to this rule such as use of silence for impeachment in certain circumstances). In Jenkins, a murder defendant turned himself in to governmental authorities two weeks after the fatal stabbing. The defendant testified at trial that he acted in self-defense. On cross-examination, the prosecutor asked the defendant why he did not wait for the police to arrive after the stabbing so that he could tell them that he had acted in self-defense and why he did not report the self-defense stabbing for two weeks. The Supreme Court found no error holding that the use of pre-arrest silence to" }, { "docid": "9368554", "title": "", "text": "her certificate of appeal-ability, Ms. Ouska must make a substantial showing that the State’s use of her prearrest silence at trial violated her constitutional rights. To do so, she must demonstrate that reasonable jurists could debate whether this challenge in her habeas petition should have been resolved in a different manner or that the issue presented was adequate to deserve encouragement to proceed further. See Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rutledge v. United States, 230 F.3d 1041, 1047 (7th Cir.2000), cert. denied, - U.S.-, 121 S.Ct. 1207, 149 L.Ed.2d 120 (2001). The Illinois Appellate Court limited its review of the prosecution’s use of Ms. Ouska’s silence to instances of impeachment and did not address the use of that silence in the prosecutor’s case-in-chief. We therefore review this issue under pre-AEDPA standards. In Jenkins v. Anderson, 447 U.S. 231, 238, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the Supreme Court ruled that the Fifth Amendment’s privilege against self-incrimination is not violated when the prosecution uses a defendant’s pre-arrest silence to impeach that defendant’s credibility. The Court reasoned that, although it “can be argued that a person facing arrest will not remain silent if his failure to speak later can be used to impeach him,” once a defendant voluntarily decides to take the stand, that individual has an obligation to testify truthfully. Id. at 236-38, 100 S.Ct. 2124. At that point, the “ ‘interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.’” Id. (quoting Brown v. United States, 356 U.S. 148, 156, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958)). Jenkins, however, left open the question of whether pre-arrest silence could be used against a defendant, not for impeachment purposes, but as substantive evidence of guilt. See id. at 236 n. 2, 100 S.Ct. 2124. We addressed that issue in United States ex rel. Savory v. Lane, 832 F.2d 1011 (1987). Savory involved a defendant who," }, { "docid": "13032480", "title": "", "text": "as issues of law. See 2 Steven Childress & Martha Davis, Federal Standards of Review, § 11.23 (3d ed.1999). The federal circuits distinguish between pre-arrest and post-arrest silence. They are divided on the question whether the prosecution may argue that pre-arrest silence is evidence of guilt. However, the First, Sixth, Seventh, and Tenth Circuits, constituting a majority of the circuits that have addressed the issue, have held that use of pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment. These circuits maintain “that application of the privilege is not limited to persons in custody or charged with a crime; it may also be asserted by a suspect who is questioned during the investigation of a crime.” Coppola v. Powell, 878 F.2d 1562, 1565 (1st Cir.1989); see Combs v. Coyle, 205 F.3d 269, 282-83 (6th Cir.2000)(citing Coppola, supra); United States v. Burson, 952 F.2d 1196, 1201 (10th Cir.1991); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir.1987) (summarizing the split in the federal circuits and holding that comment on pre-arrest silence violates Fifth Amendment). The Ninth Circuit has held that use of post-arrest, pre-Miranda silence as substantive evidence of guilt violates the Fifth Amendment. United States v. Velarde-Gomez, 269 F.3d 1023, 1028 (9th Cir.2001). A lack of response or reaction to an accusation is not “demeanor” evidence, but a failure to speak. Id. at 1031. Mil.R.Evid. 304(h)(3) makes no distinction between pre-arrest and post-arrest silence. It applies to any person who “was under official investigation or was in confinement, arrest, or custody.” This case involves post-apprehension, preMiranda silence. We conclude, based on the language of Mil.R.Evid. 304(h)(3) and what we perceive to be the weight of authority in the federal circuits, that the military judge committed constitutional error by permitting the prosecution to introduce evidence of appellant’s post-apprehension silence as substantive evidence of guilt, and to then comment on that evidence in closing argument. Curative Instructions When a military judge instructs the members, the question whether the content of the instruction is legally correct is reviewed de novo. See United States v. Quintanilla, 56 MJ" }, { "docid": "22592019", "title": "", "text": "would allow the state to submit as substantive proof of the defendant’s guilt his silence by not testifying. See id. at 613, 85 S.Ct. 1229 (“No formal offer of proof is made as in other situations; but the prosecutor’s comment and the court’s acquiescence are the equivalent of an offer of evidence and its acceptance.”). Such proffer of the defendant’s refusal to testify as evidence of guilt would impermissibly penalize the exercise of the privilege against self-incrimination and would “cut[ ] down on the privilege by making its assertion costly.” Id. at 614, 85 S.Ct. 1229. The circuits that have considered whether the government may comment on a defendant’s prearrest silence in its case in chief are equally divided. Three circuits have held that such use violates the privilege against self-incrimination found in the Fifth Amendment, relying principally upon Griffin. See United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir.1987); Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir.), cert. denied, 493 U.S. 969, 110 S.Ct. 418, 107 L.Ed.2d 383 (1989); United States v. Burson, 952 F.2d 1196, 1201 (10th Cir.1991), cert. denied, 503 U.S. 997, 112 S.Ct. 1702, 118 L.Ed.2d 411 (1992); cf. United States v. Caro, 637 F.2d 869, 876 (2d Cir.1981) (“Whatever the future impact of Jenkins may be, we have found no decision permitting the use of silence, even the silence of a suspect who has been given no Miranda warnings and is entitled to none, as part of the Government’s direct case.”; “[W]e are not confident that Jenkins permits even evidence that a suspect remained silent before he was arrested or taken into custody to be used in the Government’s case in chief.”). In Savory, the Seventh Circuit explained that because the defendant did not take the stand and because the prosecution referred to the defendant’s silence as substantive evidence of guilt, the case did not involve the application of Doyle but rather the application of Griffin. See Savory, 832 F.2d at 1017. The Seventh Circuit reasoned that while Griffin involved governmental use of the defendant’s silence at trial, “[t]he right" }, { "docid": "23385597", "title": "", "text": "adopts Collins's arguments as to this ground. It is difficult to see, however, how the alleged comment could have prejudiced Ross’s rights, given that he testified. . Although Collins faults the prosecutor for using the present tense, his attorney did so as well. As is shown by the passages excerpted supra, the prosecutor used the present tense throughout his closing argument. . This is true even though the prosecutor may have pointed at Collins while he was speaking and raised his voice while stating Collins's name. These actions reasonably would have been viewed by the jury as the prosecutor's attempt to add emphasis to his argument relating to Collins's August 10 denials. . Even if the prosecutor did comment on Collins’s failure to testify, it is plain beyond a reasonable doubt that, given the weight of the evidence, the jury would have returned a guilty verdict absent the remark. See United States v. Kane, 887 F.2d 568, 576 (5th Cir.1989), cert. denied, 493 U.S. 1090, 110 S.Ct. 1159, 107 L.Ed.2d 1062 (1990). . Again, we fail to see how Ross could have been prejudiced by the prosecutor's comment. Moreover, it is well established that a prosecutor may comment on a testifying defendant's pre-arrest silence in order to impeach him. See Jenkins v. Anderson, 447 U.S. 231, 235-40, 100 S.Ct. 2124, 2127-30, 65 L.Ed.2d 86 (1980); see also United States v. Cardenas Alvarado, 806 F.2d 566, 572 (5th Cir.1986). Thus, because Ross testified, he could be impeached by his own pre-arrest silence. . See United States v. York, 830 F.2d 885, 895-96 (8th Cir.1987) (prosecutor may comment on the inconsistency between non-testifying defendant’s pre-arrest silence and his trial defense), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988); but see United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017-19 (7th Cir.1987) (admission of evidence of non-testifying defendant’s pre-arrest silence was error, but harmless); United States v. Davenport, 929 F.2d 1169, 1174 (7th Cir.1991) (\"it violates the self-incrimination clause to allow into evidence testimony that the defendant refused to give a statement to the police when first" }, { "docid": "13032479", "title": "", "text": "history of domestic violence, had been accused of assaulting his wife less that two weeks earlier, and had been ordered to stay away from her because of the incident. Under these circumstances, his failure to deny one more allegation of “alleged assault” does not support an inference of guilt. Thus, we conclude that appellant’s lack of response was not relevant. Finally, even if appellant’s silence constituted an admission, it would admit only an “alleged assault,” not attempted premeditated murder. We hold that the military judge erred by admitting the evidence of appellant’s silence as substantive evidence of guilt. Closing Argument The privilege against self-incrimination recognized in Article 31(a), supra, is virtually identical to the privilege under the Fifth Amendment. Thus, our Fifth Amendment analysis also applies to Article 31(a). In closing argument, the trial counsel was permitted to argue, over defense objection, that appellant’s lack of response when he was apprehended for an “alleged assault” reflected his consciousness of guilt of premeditated murder. Issues involving argument referring to unlawful subject matter are reviewed de novo as issues of law. See 2 Steven Childress & Martha Davis, Federal Standards of Review, § 11.23 (3d ed.1999). The federal circuits distinguish between pre-arrest and post-arrest silence. They are divided on the question whether the prosecution may argue that pre-arrest silence is evidence of guilt. However, the First, Sixth, Seventh, and Tenth Circuits, constituting a majority of the circuits that have addressed the issue, have held that use of pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment. These circuits maintain “that application of the privilege is not limited to persons in custody or charged with a crime; it may also be asserted by a suspect who is questioned during the investigation of a crime.” Coppola v. Powell, 878 F.2d 1562, 1565 (1st Cir.1989); see Combs v. Coyle, 205 F.3d 269, 282-83 (6th Cir.2000)(citing Coppola, supra); United States v. Burson, 952 F.2d 1196, 1201 (10th Cir.1991); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir.1987) (summarizing the split in the federal circuits and holding that comment on pre-arrest" }, { "docid": "4408085", "title": "", "text": "elements that justice cannot have been done.’ ” Id. at 890 (quoting United States v. Henning, 906 F.2d 1392, 1397 (10th Cir.1990), cert. denied, 498 U.S. 1069, 111 S.Ct. 789, 112 L.Ed.2d 852 (1991)). We note initially, the assertion of error here is quite unusual because it is predicated upon an invalid exercise of the self-incrimination privilege. As the district court held in the civil contempt hearing, Mr. Rice could not properly invoke the privilege in this case because no corporation possesses such a right. United States v. Hansen Niederhauser Co., 522 F.2d 1037, 1039 (10th Cir.1975). This limitation extends to S Corporations. Id. Moreover, none of the authority cited to us addresses the issue of the propriety of prosecutorial comment on the exercise of a nonexistent privilege. We do not have to reach the issue of propriety, however, because Mr. Rice is attempting to force his case into a box where it does not fit. Although it is a hoary rule that the prosecution cannot comment at trial on a defendant’s post-Miranda decision to remain silent, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the rule is predicated upon the principle that allowing the prosecution to impeach a defendant’s trial testimony with his post-Miranda silence would penalize the exercise of his Fifth Amendment privilege. The Court offered two central reasons in support of this holding. First, it postulated, “every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested.” Id. at 617, 96 S.Ct. at 2244. The defendant’s silence may simply have occurred in response to the Miranda warnings and in no way indicates his guilt. Second, the Court believed that implicit in the Miranda warnings was the notion that their exercise “will carry no penalty.” Id. at 618, 96 S.Ct. at 2245. This rule has been extended to apply to pre-arrest silence, United States v. Burson, 952 F.2d 1196, 1200-01 (10th Cir.1991), cert. denied, 503 U.S. 997, 112 S.Ct. 1702, 118 L.Ed.2d 411 (1992), with the exception that pre-arrest silence may be used for impeachment purposes." }, { "docid": "22592020", "title": "", "text": "United States v. Burson, 952 F.2d 1196, 1201 (10th Cir.1991), cert. denied, 503 U.S. 997, 112 S.Ct. 1702, 118 L.Ed.2d 411 (1992); cf. United States v. Caro, 637 F.2d 869, 876 (2d Cir.1981) (“Whatever the future impact of Jenkins may be, we have found no decision permitting the use of silence, even the silence of a suspect who has been given no Miranda warnings and is entitled to none, as part of the Government’s direct case.”; “[W]e are not confident that Jenkins permits even evidence that a suspect remained silent before he was arrested or taken into custody to be used in the Government’s case in chief.”). In Savory, the Seventh Circuit explained that because the defendant did not take the stand and because the prosecution referred to the defendant’s silence as substantive evidence of guilt, the case did not involve the application of Doyle but rather the application of Griffin. See Savory, 832 F.2d at 1017. The Seventh Circuit reasoned that while Griffin involved governmental use of the defendant’s silence at trial, “[t]he right to remain silent, unlike the right to counsel, attaches before the institution of formal adversary proceedings.” Id. at 1017. The court therefore concluded that Griffin’s prohibition on the use of a defendant’s silence, as substantive evidence of guilt “applies equally to a defendant’s silence before trial, and indeed, even before arrest.” Id. In Coppola, the First Circuit cited Raffel and Griffin and reasoned that the “broad rule of law” set forth in those eases “is that where a defendant does not testify at trial it is impermissible to refer to any fifth amendment rights that defendant has exercised.” Coppola, 878 F.2d at 1567. It therefore held that the prosecution’s use of the defendant’s prearrest silence in its case in chief violated the Fifth Amendment. See id. at 1568. The Tenth Circuit reached the same result in Burson: “The general rule of law is that once a defendant invokes his right to remain silent, it is impermissible for the prosecution to refer to any Fifth Amendment rights which defendant exercised. To be sure, exceptions exist to" }, { "docid": "9368555", "title": "", "text": "pre-arrest silence to impeach that defendant’s credibility. The Court reasoned that, although it “can be argued that a person facing arrest will not remain silent if his failure to speak later can be used to impeach him,” once a defendant voluntarily decides to take the stand, that individual has an obligation to testify truthfully. Id. at 236-38, 100 S.Ct. 2124. At that point, the “ ‘interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.’” Id. (quoting Brown v. United States, 356 U.S. 148, 156, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958)). Jenkins, however, left open the question of whether pre-arrest silence could be used against a defendant, not for impeachment purposes, but as substantive evidence of guilt. See id. at 236 n. 2, 100 S.Ct. 2124. We addressed that issue in United States ex rel. Savory v. Lane, 832 F.2d 1011 (1987). Savory involved a defendant who, in a non-custodial setting and without being provided with Miranda warnings, refused to answer any questions from police officers regarding a murder investigation. See id. at 1015. In that case, we concluded that the Supreme Court’s opinion in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which had forbidden the prosecution from using a defendant’s silence at trial as an inference of his guilt, “applies equally to a defendant’s silence before trial, and indeed, even before arrest.” Savory, 832 F.2d at 1017. We reasoned that the right to remain silent attached before the institution of adversarial proceedings, and although “the presence of Miranda warnings might provide an additional reason for disallowing use of the defendant’s silence as evidence of guilt, they are not a necessary condition to such a prohibition.” Id. at 1018. Lastly, we noted that, because the defendant in Savory did not take the stand, the prosecution’s motive in referring to his pre-arrest, pr e-Miranda silence was to suggest that he was guilty, not to impeach his testimony," }, { "docid": "4408086", "title": "", "text": "remain silent, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the rule is predicated upon the principle that allowing the prosecution to impeach a defendant’s trial testimony with his post-Miranda silence would penalize the exercise of his Fifth Amendment privilege. The Court offered two central reasons in support of this holding. First, it postulated, “every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested.” Id. at 617, 96 S.Ct. at 2244. The defendant’s silence may simply have occurred in response to the Miranda warnings and in no way indicates his guilt. Second, the Court believed that implicit in the Miranda warnings was the notion that their exercise “will carry no penalty.” Id. at 618, 96 S.Ct. at 2245. This rule has been extended to apply to pre-arrest silence, United States v. Burson, 952 F.2d 1196, 1200-01 (10th Cir.1991), cert. denied, 503 U.S. 997, 112 S.Ct. 1702, 118 L.Ed.2d 411 (1992), with the exception that pre-arrest silence may be used for impeachment purposes. United States v. Chimal, 976 F.2d 608, 611 (10th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1331, 122 L.Ed.2d 715 (1993); Jenkins v. Anderson, 447 U.S. 231, 238-40, 100 S.Ct. 2124, 2129-30, 65 L.Ed.2d 86 (1980). Mr. Rice would like this rule extended still further. He attempted to invoke the privilege initially during an administrative proceeding and later during a civil enforcement action. The district court found the privilege did not apply. Now, Mr. Rice argues the government cannot describe what occurred at the civil contempt hearing — or at least not that he tried to invoke his Fifth Amendment privilege. The argument is without a rational basis. Mr. Rice’s attempt to invoke the privilege was unsuccessful because it was nonexistent. In Doyle, Burson, and the other typical cases in this area, the defendant has successfully remained silent. The government attempted to either attach a reason why the defendant chose to remain silent, or contended, if the story given at trial were true, the defendant would not have remained silent. In both circumstances, the" }, { "docid": "23385598", "title": "", "text": "fail to see how Ross could have been prejudiced by the prosecutor's comment. Moreover, it is well established that a prosecutor may comment on a testifying defendant's pre-arrest silence in order to impeach him. See Jenkins v. Anderson, 447 U.S. 231, 235-40, 100 S.Ct. 2124, 2127-30, 65 L.Ed.2d 86 (1980); see also United States v. Cardenas Alvarado, 806 F.2d 566, 572 (5th Cir.1986). Thus, because Ross testified, he could be impeached by his own pre-arrest silence. . See United States v. York, 830 F.2d 885, 895-96 (8th Cir.1987) (prosecutor may comment on the inconsistency between non-testifying defendant’s pre-arrest silence and his trial defense), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988); but see United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017-19 (7th Cir.1987) (admission of evidence of non-testifying defendant’s pre-arrest silence was error, but harmless); United States v. Davenport, 929 F.2d 1169, 1174 (7th Cir.1991) (\"it violates the self-incrimination clause to allow into evidence testimony that the defendant refused to give a statement to the police when first approached by them,” citing Lane), cert. denied, - U.S. -, 112 S.Ct. 871, 116 L.Ed.2d 776 (1992). The Seventh Circuit recently limited Lane’s scope to those situations in which the defendant is completely silent, as opposed to situations in which the defendant answers some questions and then refuses to answer others. Davenport, 929 F.2d at 1174-75. The court also found that if there was error, it was harmless. Id. at 1175. . See United States v. Cardenas Alvarado, 806 F.2d 566, 572 (5th Cir.1986) (\"if testimony relates to pre-arrest silence, the Constitutional claim has no merit\"). . Specifically, on two separate occasions Collins affirmatively denied having any business dealings with Ross. The first was during the ride to the courthouse. The testimony of Agent Cleveland was as follows: Q: Did [Collins] say anything about whether he had accepted money from John Ross for Gary Young’s sentencing? A: He said he accepted no money at all from John Ross concerning sentencing or any other reason. Q: Did he say anything about whether he had any business" }, { "docid": "2034123", "title": "", "text": "a defendant’s post-arrest, pre-Miranda silence against him as evidence of his guilt); United States v. Hernandez, 948 F.2d 316, 322-24 (7th Cir. 1991) (same); see also Mitchell v. United States, 526 U.S. 314,-, 119 S.Ct. 1307, 1319 n. 2, 143 L.Ed.2d 424 (1999) (Scalia, J., dissenting) (noting that the Supreme Court “did say in Miranda v. Arizona that a defendant’s postarrest silence could not be introduced as substantive evidence against him at trial” (citation omitted)); Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (“The prosecution may not ... use at trial the fact that [a defendant] stood mute or claimed his [Fifth Amendment] privilege [against self-incrimination] in the face of accusation.”); cf. Bradford v. Stone, 594 F.2d 1294, 1295-96 (9th Cir.1979) (per curiam) (citing Douglas, 578 F.2d at 267, as a post-arrest, pre-Miranda case). But see United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir.1991) (stating that “the government may comment on a defendant’s silence when it occurs after arrest, but before Miranda warnings are given”). United States v. Oplinger, 150 F.3d 1061 (9th Cir.1998), and United States v. Baker, 999 F.2d 412 (9th Cir.1993), do not dictate a contrary result. In Oplinger, we held that the government’s use of a defendant’s pre-arrest, pre-Miranda silence as substantive evidence of guilt “did not offend [the defendant’s] privilege against self-incrimination ... or his right to due process.” Oplinger, 150 F.3d at 1067. We strictly limited our ruling in Oplinger to the period “[p]rior to custody,” id., “[w]hen a citizen is under no official compulsion whatever, either to speak or to remain silent,” id. at 1066 (quoting Jenkins v. Anderson, 447 U.S. 231, 243-44, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (Stevens, J., concurring in the judgment)) (internal quotation marks omitted). Thus, Oplinger neither controls this case nor conflicts with our holding in Douglas. In Baker, we held that a prosecution closing argument that “broadly condemned] appellants’ silence: pre-Miranda and post-Miranda” violated due process. Baker, 999 F.2d at 416. We also speculated in dicta that an argument commenting more narrowly on a defendant’s post-arrest" }, { "docid": "1980525", "title": "", "text": "out that the circuit courts do hot agree as to when the government may comment on a defendant’s silence. The First, Second, Sixth, and Seventh Circuits prohibit the use of even pre-arrest silence as substantive evidence of guilt. United States v. Okatan, 728 F.3d 111, 120 (2d Cir. 2013); Ouska v. Cahill-Masching, 246 F.3d 1036, 1049 (7th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 560 (6th Cir. 2000); Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir. 1989). But see United States v. Zarauskas, 814 F.3d 509, 515-16 (1st Cir. 2016) (We assume “without deciding, that prosecutorial comment on the defendant’s pre-custodial silence violates the Fifth Amendment.”). The Ninth, Tenth, and D.C. Circuits prohibit the use of post-arrest, pre-Miranda silence as substantive evidence of guilt. United States v. Hernandez, 476 F.3d 791, 796 (9th Cir. 2007); United States v. Moore, 104 F.3d 377, 389 (D.C. Cir. 1997); United States v. Burson, 952 F.2d 1196, 1200-01 (10th Cir. 1991). In addition to the Eleventh Circuit, the Fourth and Eighth Circuits permit the government to comment on a defendant’s silence at any time prior to the issuance of Miranda warnings. United States v. Cornwell, 418 Fed.Appx. 224, 227 (4th Cir. 2011) (unpublished); United States v. Osuna-Zepeda, 416 F.3d 838, 844 (8th Cir. 2005). See also United States v. Pando Franco, 503 F.3d 389, 395 n.1 (5th Cir. 2007) (describing circuit split on this issue). Although the Supreme Court once granted certiorari to resolve this question, the Court ultimately decided the case on other grounds, leaving the circuit split in place. Salinas v. Texas, — U.S.-,-133 S.Ct. 2174, 2179, 186 L.Ed.2d 376 (2013). In Salmas, the Court held that a defendant’s silence in response to a question in a non-custodial interview by a law-enforcement officer was admissible as substantive evidence of his guilt because the defendant did not “expressly invoke the privilege against self-incrimination in response to the officer’s question.” Id. at 2178. The fact that the Salinas defendant was not in custody at the time of his silence was central to the Court’s determination that his silence could be used as" }, { "docid": "8750057", "title": "", "text": "waiving his Miranda rights and then answering questions about his silence, Pando cannot be said to have been exercising his privilege against self-incrimination at that time. Accordingly, we conclude that the admission of such evidence of silence at trial did not violate Pando’s Fifth Amendment privilege against self-incrimination. IV. CONCLUSION For these reasons, the district court’s judgment of conviction is AFFIRMED. . The issue has also split the circuit courts. The Ninth, Tenth, and D.C. Circuits hold that the use of post-arrest, pre-Miranda silence as substantive evidence of guilt violates the Fifth Amendment. See United States v. Velarde-Gomez, 269 F.3d 1023, 1028-30 (9th Cir.2001) (en banc); United States v. Whitehead, 200 F.3d 634, 637-39 (9th Cir.2000); United States v. Burson, 952 F.2d 1196, 1201 (10th Cir.1991); United States v. Moore, 104 F.3d 377, 384-90 (D.C.Cir.1997). The First, Sixth, and Seventh Circuits go even further and hold that the use of pre-arrest silence as substantive evidence of guilt is impermissible under the Fifth Amendment. See Coppola v. Powell, 878 F.2d 1562, 1567-68 (1st Cir.1989); Combs v. Coyle, 205 F.3d 269, 280-83 (6th Cir.2000); Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir.1987). Finally, the Fourth, Eighth, and Eleventh Circuits hold that the use of post-arrest, pre-Miranda silence as substantive evidence of guilt does not violate the Fifth Amendment privilege against self-incrimination. United States v. Love, 767 F.2d 1052, 1063 (4th Cir.1985); United States v. Frazier, 408 F.3d 1102, 1109-11 (8th Cir.2005); United States v. Rivera, 944 F.2d 1563, 1567-68 (11th Cir.1991). . We also note that Pando cannot be said to have been exercising his privilege against self-incrimination when he testified at trial on his own behalf. . Our holding today is a narrow one and relies exclusively on the fact that Pando knowingly, intelligently, and voluntarily waived his Miranda rights and then proceeded to answer questions about his post-arrest, pre- and post-Miranda silence. We do not address the issue of whether a Miranda waiver alone has any retroactive effect on the admissibility post-arrest, pre-Miranda silence. See United States v. Velarde-Gomez, 269 F.3d 1023, 1033-34 (9th Cir.2001) (en banc); United States" }, { "docid": "22592018", "title": "", "text": "courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.’ ” Id. (quoting Brown v. United States, 356 U.S. 148, 156, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958)) (alteration in original). Jenkins did not, however, address the question at issue in this case, namely, whether the use of prearrest silence as substantive evidence of guilt violates the Fifth Amendment. See id. at 236 n. 2, 100 S.Ct. 2124 (leaving this question unresolved). That use of a defendant’s prear-rest silence as substantive evidence of guilt is significantly different than the use of prearrest silence to impeach a defendant’s credibility on the stand is clear. In Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the Supreme Court held that the Fifth Amendment “forbids either comment by the prosecution on the accused’s [refusal to testify at trial] or instructions by the court that such silence is evidence of guilt.” The Court reasoned that a contrary rule would allow the state to submit as substantive proof of the defendant’s guilt his silence by not testifying. See id. at 613, 85 S.Ct. 1229 (“No formal offer of proof is made as in other situations; but the prosecutor’s comment and the court’s acquiescence are the equivalent of an offer of evidence and its acceptance.”). Such proffer of the defendant’s refusal to testify as evidence of guilt would impermissibly penalize the exercise of the privilege against self-incrimination and would “cut[ ] down on the privilege by making its assertion costly.” Id. at 614, 85 S.Ct. 1229. The circuits that have considered whether the government may comment on a defendant’s prearrest silence in its case in chief are equally divided. Three circuits have held that such use violates the privilege against self-incrimination found in the Fifth Amendment, relying principally upon Griffin. See United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir.1987); Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir.), cert. denied, 493 U.S. 969, 110 S.Ct. 418, 107 L.Ed.2d 383 (1989);" }, { "docid": "22279252", "title": "", "text": "Miranda warnings. This court has previously held that a prosecutor’s reference to a non-testifying defendant’s pre-arrest silence does not violate the privilege against self-incrimination if the defendant’s silence is not induced by, or a response to, the actions of a government agent. See United States v. Zanabria, 74 F.3d 590, 593 (5th Cir.1996). Moreover, one unpublished decision of this court has interpreted Za-nabria to permit the substantive use of post-arrest, pre-Miranda silence. See United States v. Garcia-Gil, 133 Fed.Appx. 102, 108 (5th Cir.2005) (stating that Zanabria “prevents Garcia-Gil from drawing a distinction based on whether the silence was used as impeachment evidence or as substantive evidence of guilt”). In addition, there is a split among the other federal circuits as to whether a prosecutor’s use of a defendant’s post-arrest, pr e-Miranda silence as substantive evidence of guilt violates the Fifth Amendment privilege against self-incrimination. The Seventh, Ninth, and D.C. Circuits have all squarely held that it does. See United States v. Velarde-Gomez, 269 F.3d 1023, 1028-30 (9th Cir.2001) (en banc); United States v. Whitehead, 200 F.3d 634, 637-39 (9th Cir.2000); United States v. Moore, 104 F.3d 377, 384-90 (D.C.Cir.1997); United States v. Hernandez, 948 F.2d 316, 322-23 (7th Cir.1991). The First and Sixth Circuits have gone further and have held that the substantive use of even pre-arrest silence can violate the privilege against self-incrimination. See Combs, 205 F.3d at 280-83; Coppola v. Powell, 878 F.2d 1562, 1567-68 (1st Cir.1989). The Fourth, Eighth, and Eleventh Circuits have, on the other hand, found the substantive use of post-arrest, pre-Miranda silence during the prosecution’s case-in-chief permissible. See United States v. Frazier, 408 F.3d 1102, 1109-11 (8th Cir.2005); United States v. Rivera, 944 F.2d 1563, 1567-68 (11th Cir.1991); United States v. Love, 767 F.2d 1052, 1063 (4th Cir.1985). We need not decide this constitutional question today. Because this circuit’s law remains unsettled and the other federal circuits have reached divergent conclusions on this issue, even assuming that the prosecutor’s comments were improper, Salinas cannot satisfy the second prong of the plain error test — that the error be clear under existing law. See United" }, { "docid": "14972916", "title": "", "text": "later as [the] suitcase was being searched.” Id. at 1569. Thus, the conclusion that pr e-Miranda silence was properly admitted is not dictum, but was essential to the court’s decision that an assumed error was harmless. This court later explained Rivera in U.S. v. Simon, 964 F.2d 1082 (11th Cir.1992). There, Simon said before arrest that he did not own a certain weapon. Later, it was discovered that he did. At trial, the government introduced in its case-in-ehief that Simon earlier failed to admit ownership of the weapon. Simon argued this violated his fifth amendment rights. This court responded, “[b]ecause Simon was not under arrest at the time in question, we reject his claim that the evidence ... was inadmissible because of the fifth amendment self-incrimination provisions. Silence is admissible in the absence of Miranda warnings.” Id., 964 F.2d at 1086 n. * (citing Rivera) (emphasis added). The law of this circuit is settled that evidence of pr e-Miranda silence is admissible in the government’s case-in-chief as substantive proof of guilt. Cf. U.S. v. Calise, 996 F.2d 1019, 1022 (9th Cir.1993) (error — if any — in admitting evidence of defendant’s reluctance to answer police questions in government’s ease-in-chief harmless given curative instruction); U.S. v. Hernandez, 948 F.2d 316, 323 (7th Cir.1991) (momentary pr e-Miranda silence at the time arrest is ongoing not admissible in case-in-chief); U.S. v. Burson, 952 F.2d 1196, 1201 (10th Cir.1991) (pre-arrest silence, where defendant has already affirmatively asserted right to silence, inadmissible in government’s case-in-chief); U.S. ex rel. Savory v. Lane, 832 F.2d 1011, 1015-17 (7th Cir.1987) (pre-arrest silence, after defendant informs police “I won’t make any statements,” not admissible in case-in-chief); Coppola v. Powell, 878 F.2d 1562, 1567-68 (1st Cir.1989) (pre-Miranda statement of “if you think I’m going to confess to you, you’re crazy” inadmissible because it was assertion of right to remain silent); U.S. v. Caro, 637 F.2d 869, 876 (2d Cir.1981) (assuming without deciding it is error to introduce pre-Miranda silence under similar facts, but holding any error harmless because evidence clearly admissible to impeach defendant’s testimony). Applying this rule to the" } ]

[ { "docid": "9888897", "title": "", "text": "PER CURIAM. This is an appeal from the district court’s grant of summary judgment in favor of the defendants. Environmental Defense Fund, Inc. v. Morton, 420 F.Supp. 1037 (D.Mont. 1976). In 1944, Congress passed the Flood Control Act, 58 Stat. 887, which established water projects throughout the Missouri River Basin. Two of the projects authorized by the Act are the Yellowtail and Boysen Reservoirs located in Montana and Wyoming. The Department of Interior began a program in 1967 for marketing water from these reservoirs for industrial uses. By 1974, when the action was filed, 658,000 acre feet of water per year had been committed in option contracts for industrial uses. This is approximately 28 percent of the two reservoirs’ combined capacity. Appellants, a coalition of environmental, wildlife and agricultural organizations, including irrigation districts, a livestock company and individual farmers and ranchers, sued for injunctive and declaratory relief, claiming that sale of water from these particular projects for industrial uses was a violation of the Flood Control Act. The district court granted summary judgment for the defendants and found that the Secretary of Interior had properly exercised his statutory authority and had violated neither the National Environmental Protection Act (NEPA) nor the Fish and Wildlife Coordination Act. Four issues are presented on this appeal. Appellants contend that the district court erred in finding that: (1) the Secretary of Interior had authority to enter into option contracts for the sale of water for industrial uses from the Yellowtail and Boysen Reservoirs; (2) the Secretary properly determined that the industrial water sales would not impair the efficiency of the two water projects for irrigation purposes; (3) no environmental impact statement (EIS) was required for either the regional marketing plan or the individual option contracts; and (4) the Fish and Wildlife Coordination Act does not apply to projects constructed prior to its enactment. The district court is affirmed as to the first and second issues but is reversed on the third and fourth. Authority of the Secretary of Interior The district court, in a comprehensive opinion, reviewed the Flood Control Act of 1944 and" } ]

[ { "docid": "17816069", "title": "", "text": "an implied exemption would be wholly unjustified. It may be helpful to begin with a brief summary of the legislative history of the 1944 Act as it relates to the Kings River project. Mention should be made at the outset of a significant factor in the historical context in which Congress considered the 1944 Act. A proposal to expressly exempt the Central Valley project from acreage limitations was under consideration by Congress at the time that Congress was considering the 1944 Act. The proposal for express exemption was defeated after vigorous congressional debate. See Ivanhoe Irrigation District v. McCracken, supra, 357 U.S. at 292-93, 78 S.Ct. at 1184, 2 L.Ed.2d at 1326. An almost identical debate took place during consideration of the Flood Control Act regarding whether the reclamation laws, and especially acreage limitations, should be applicable to the Pine Flat Dam and other projects authorized for construction in the Sacramento-San Joaquin River Basin. These projects were to be adjacent to the Central Valley project; the Administration argued they should be integrated into it. Under these circumstances, it is highly unlikely that the same Congress that rejected an express exemption for the Central Valley project intended, sub silentio, to exclude the Pine Flat Dam from acreage limitations. The legislative history confirms that it did not. The proceedings directly concerned with the 1944 Act were marked by a continuing controversy over two distinct issues: (1) whether Pine Flat Dam should be constructed by the Corps of Engineers or the Bureau of Reclamation; and (2) whether the acreage limitation should apply to the project once built. The controversy may fairly be characterized as a power struggle between Kings River water users and the Roosevelt Administration. The water users needed the dam for flood protection and a regulated water flow. They were willing to pay for irrigation benefits, but did not wish to become subject to the reclamation laws, especially acreage restrictions. The Administration, represented by President Roosevelt, Secretary of the Interior Ickes, and Commissioner Bashore of the Bureau of Reclamation, was equally insistent that the acreage restrictions should apply to the Kings" }, { "docid": "18603930", "title": "", "text": "the spectrum of beneficial uses of the water resource as contemplated by the authorizing legislation. For example, the Definite Plan Report for the Yellowtail Unit explains: The proposed Yellowtail Unit is a multipurpose development planned to provide irrigation, flood control, power generation, silt retention, improvement of fish and wildlife resources, recreational opportunities, municipal-industrial water and other benefits (Definite Plan Report, Yellowtail Unit — Montana, Volume I, Page 1, Department of Interior 1950). b. Judicial Confirmation. The Federal District Court in Montana has consistently recognized the multiple- purpose features of reclamation facilities constructed as part of the Upper Missouri River Basin Program. In United States v. 5,677.94 Acres of Land, et al., 152 F.Supp. 861, 862 (D.C.Mont.1957), Judge Pray recognized that the Yellowtail Unit was: . designed to accomplish the several public uses stated, such as helping avert and control flood waters, generate electric power, control silt and abate water pollution, provide recreational areas, make water available for irrigation, and for municipal and industrial uses. Two years later, in United States v. 5,677.94 Acres of Land, et ah, 162 F.Supp. 108, 120 (D.C.Mont.1958), Judge Jameson similarly noted that the Yellowtail Dam would: . be a multi-purpose dam, making water available for irrigation, power, municipal and industrial purposes, recreation, and flood control and river regulations. Further, in Crow Tribe v. United States, Civil No. 214 (D.C.Mont.1961) (October 6, 1963, at page 37), Judge Jameson observed, as a basis for the award to the Crow Tribe, that the United States: . is constructing a multipurpose dam designed to “provide irrigation, flood control, power generation, silt retention, improvement of fish and wildlife resources, recreational opportunities, municipal-industrial water and other benefits.” A similar observation was made by Judge Murray in United States v. 361.91 Acres of Land, et al., Civil No. 994 (D.Mont.1965) (April 10,1965), where he rejected the argument that Clark Canyon Dam (a project also authorized as part of the Sloan Plan under Section 9 of the Flood Control Act of 1944) was intended by Congress to serve only irrigation and flood control purposes, and declared: The lands in Parcel No. 12 were" }, { "docid": "18603936", "title": "", "text": "Departments have been vested with a wide discretion in carrying out such plan, and the courts have little or no authority to interfere with the exercise of that discretion. For the foregoing reasons, the defendants’ motion for summary judgment is granted. SECOND CLAIM FOR RELIEF Plaintiffs allege that defendants have not obtained approval of the industrial water option contracts by the appropriate water users’ associations; have failed to make the required showing that there is no other practicable source of water supply for these industrial purposes; and have contracted to furnish water for industrial purposes, the delivery of which will be detrimental to agricultural irrigation and the rights of pri- or appropriators; all in violation of 43 U.S.C. § 521. Subsequently, plaintiffs moved that this claim for relief be dismissed without prejudice. It is the Court’s order that this claim be dismissed with prejudice. The Miscellaneous Water Supply Act of 1920 (41 Stat. 451, 43 U.S.C. § 521) has no application to the issues in this law suit. Boysen and Yellowtail Projects were built as multi-purpose projects under the Flood Control Act of 1944, and the Bureau was authorized by the 1944 Act and the Reclamation Project Act of 1939 to enter into the subject contracts. THIRD CLAIM FOR RELIEF Plaintiffs allege that the defendants in their water marketing program have modified the Yellowtail and Boysen Reservoirs project purposes to include storage for industrial water, and that such modification seriously changes the purpose for which these projects were authorized and constructed. Plaintiffs further contend that defendants have failed to seek the required approval of Congress for such modifications and changes, in violation of 43 U.S.C. § 390b(d). Plaintiffs have also requested to dismiss without prejudice this claim for relief. Likewise, IT IS ORDERED that the claim is dismissed with prejudice. The Water Supply Act is a separate and distinct authorized procedure from that given by Congress in Section 9(c) of the Reclamation Project Act of 1939 under which statutory authority the Bureau of Reclamation and Secretary of the Interior proceeded in this case. As the Water Supply Act declares: The" }, { "docid": "8509910", "title": "", "text": "for development of the Basin, a Committee composed of two representatives each from the Corps of Engineers and the Bureau of Reclamation was appointed to review the engineering features of the two plans. This Committee essentially combined the determinations made by the Corps about the projects that would be needed for flood control and navigation and the determinations made by the Bureau about the additional projects that would be needed for irrigation. After meeting for two days, the Committee produced an engineering report that recommended most of the specific developments that had been set out in the Sloan Plan, but provided for six main-stem reservoirs on the Missouri River. The Oahe Reservoir was to be created by construction of a high dam and to have a gross storage capacity of 19 million acre-feet of water. The stated purposes of Lake Oahe were to allow “the irrigation of 750,000 acres of land in the James River Basin as well as to provide useful storage for flood control, navigation, the development of hydroelectric power, and other purposes.” S. Doc. No. 247, 78th Cong., 2d Sess., 3 (1944). As had been proposed in the Sloan Plan, the irrigation of the James River Basin was to be made possible by construction of a system of long canals, including one canal approximately 125 miles long. See S. Doc., at 115-116. With a single set of projects before it at last, Congress enacted the Flood Control Act of 1944 less than two months later. B In the Act, Congress accomplished three distinct tasks. First, it authorized certain specific projects to be undertaken by approving the “general comprehensive plans set forth in [the Pick and Sloan Plans] as revised and coordinated by Senate Document 247.” §9(a), 58 Stat. 891. It directed that “the initial stages recommended are hereby authorized and shall be prosecuted by the War Department and the Department of the Interior as speedily as may be consistent with budgetary requirements.” Ibid. Second, Congress appropriated funds to pay for the initial work done on those projects. Two separate allotments were authorized: $200 million “for the partial" }, { "docid": "18603931", "title": "", "text": "et ah, 162 F.Supp. 108, 120 (D.C.Mont.1958), Judge Jameson similarly noted that the Yellowtail Dam would: . be a multi-purpose dam, making water available for irrigation, power, municipal and industrial purposes, recreation, and flood control and river regulations. Further, in Crow Tribe v. United States, Civil No. 214 (D.C.Mont.1961) (October 6, 1963, at page 37), Judge Jameson observed, as a basis for the award to the Crow Tribe, that the United States: . is constructing a multipurpose dam designed to “provide irrigation, flood control, power generation, silt retention, improvement of fish and wildlife resources, recreational opportunities, municipal-industrial water and other benefits.” A similar observation was made by Judge Murray in United States v. 361.91 Acres of Land, et al., Civil No. 994 (D.Mont.1965) (April 10,1965), where he rejected the argument that Clark Canyon Dam (a project also authorized as part of the Sloan Plan under Section 9 of the Flood Control Act of 1944) was intended by Congress to serve only irrigation and flood control purposes, and declared: The lands in Parcel No. 12 were taken for use in connection with the Clark Canyon Dam and Reservoir, East Bench Unit, Missouri River Basin Project. The Missouri River Basin Project was authorized by Section 9 of the Flood Control Act of December 22, 1944 (58 Stat. 887), and Section 18 of the Flood Control Act of July 24, 1946 (60 Stat. 641). Section 9(a) of the Flood Control Act of December 22, 1944, approved the general comprehensive plans for the development of the Missouri River Basin set forth in Senate Document 191, and House Document 475, 78th Congress, Second Session. The Clark Canyon Dam and Reservoir is included in the comprehensive plan for the development of the Missouri River Basin on page 62 of Senate Document 191. Senate Document 191, at page 13, indicates that considerations for the protection of fish and wildlife and for recreation were included in the overall plan for the development of the Missouri River Basin, as well as flood control, irrigation and power. (Order dated April 10, 1965, at page 3.) Judge Murray noted that page" }, { "docid": "16758326", "title": "", "text": "Plaintiffs timely appealed to this court. BACKGROUND The historical record and procedural history of this ease occupy a substantial part of the trial court’s extensive opinion. See Stockton E. Water Dist. v. United States, 75 Fed.Cl. 321, 330-47 (2007). For more of the details, we refer the reader there. We recite in only summary fashion the facts necessary to place our decision in context. A. The Central Valley Project, New Melones, and the 1983 Contracts The Central Valley Project is the largest federal water management project in the United States. It was built to serve the water needs in California’s Central Valley Basin. Originally conceived by the State of California, the CVP was taken over by the Federal Government in 1935 and initially funded by Congress as part of the nation’s effort to use public works projects to return the economy to health during the Depression. Congress reauthorized the CVP in 1937, assigning to the Bureau of Reclamation the tasks of constructing and operating the CVP. The CVP today consists of twenty dams and reservoirs, eleven power plants, over 500 miles of major canals, and numerous other facilities. Reclamation continues to operate the CVP under the various federal reclamation laws that have been amended and supplemented many times over the years. The New Melones Unit of the CVP was completed in 1979 and consists of a large concrete dam on the Stanislaus River and a reservoir with a storage capacity of 2.4 million acre-feet of water. New Melones was the last unit of the CVP to be eon- structed, after final authorization by Congress in 1962. As Reclamation’s history of the project explains, the construction of the New Melones dam and power plant was one of the more controversial chapters in the history of the CVP. The controversy focused on the loss of a popular stretch of recreational white water, inundation of archeological sites, and flooding of the West’s deepest limestone canyon. Controversy over the project lasted over a decade before the decision to proceed and provide irrigation water, flood control, and power generation occurred. The battle over construction of" }, { "docid": "8509939", "title": "", "text": "Pick and Sloan Plans did not shed any further light on how the administrative jurisdictions of the two Departments were to be circumscribed, but merely observed that the engineering features of the two plans were brought into agreement by applying the principles that the Army Corps of Engineers “should have the responsibility for determining main stem reservoir capacities and capacities of tributary reservoirs for flood control and navigation,” and the Bureau of Reclamation “should have the responsibility for determining the reservoir capacities on the main stem and tributaries of the Missouri River for irrigation.” S. Doc. No. 247, 78th Cong., 2d Sess., 1 (1944). This passage seems to be nothing more than an explanation of how the final number of projects and the amount of their storage capacities were reached by the representatives of the two Departments. The petitioners contend that the term “reclamation. . . development]” in § 9(c) can encompass either the entire reservoir project at Oahe or the activities that Interior might undertake to dispose of water stored at Oahe for irrigation. Neither suggestion is tenable. The construction of the main-stem dam and reservoir project at Oahe was undertaken and controlled by the Army, and the District Court found this to be true as a matter of fact; thus Oahe cannot be a “reclamation . . . development] to be undertaken by the Secretary of the Interior.” And the suggestion that the term “reclamation . . . development]” may refer to activities rather than projects is wrong for several reasons. First, the whole term is “reclamation and power developments to be undertaken by the Secretary of the Interior.” These developments, which were set out more specifically in the Pick and Sloan Plans, plainly refer to the only developments that the Act identifies Interior as undertaking: the “power developments” (“transmission lines and related facilities”) identified in § 5, and the “reclamation developments” (“irrigation works”) identified in §8. Second, the term “reclamation . . . development]” used in § 9(c) of the Act is linked by peti tioners to § 9(c) of the Reclamation Project Act of 1939, 53" }, { "docid": "11656159", "title": "", "text": "dam site are presently under way and are approximately 90% complete. 14. The Meramec Park Reservoir was first authorized by the Flood Control Act of 1938. Congress ratified it with modifications in the Flood Control Act of 1966. In addition, Congress ratified the Union Reservoir and first approved the Pine Ford, 1-38, Irondale Reservoirs and 19 Angler Use Sites. Aside from the Meramec Reservoir, none of the other proposed reservoirs have been funded for land acquisition or construction. Only the Union Dam Project has received funds for planning. 15. Each of these reservoirs, if built, would supplement the others and in functioning together would provide the largest measure of flood protection, recreational, water supply and navigational benefits to the Meramec Basin. 16. The evidence produced at trial indicates that the reservoirs as discussed in findings of fact numbers 14 and 15 are functionally independent. It is clear that, while each reservoir has an incremental effect in meeting the total flood control and water quality needs of the Meramec River Basin, the proposed dams would operate independently of each other. It is clear that each reservoir, acting alone, would satisfy a portion of the river basin’s needs. The evidence further shows that a determination of whether or not any of the other proposed reservoirs will ever be built would require speculation on the part of this Court. 17. The evidence adduced at trial indicates that the Meramec Basin can be divided into three sub-basins; the Meramec River, the Big River and the Bourbouse Sub-Basins. Each sub-basin has distinctive hydrologic, geographic, demographic, environmental, economic and sociological characteristics. Each sub-basin, therefore, becomes an appropriate unit for a separate environmental evaluation. 18. The Corps of Engineers prepared and filed an Environmental Impact Statement (EIS) which considers the Meramec River Sub-Basin and the Meramec Park Reservoir alone. There is no evidence in this matter which shows that this approach was either arbitrary or unreasonable, nor that it in any way attempts to avoid the full disclosure requirements of the National Environmental Policy Act of 1969 (NEPA)-. Considering that the construction of the other reservoirs is" }, { "docid": "23015897", "title": "", "text": "PacifiCorp is not liable to the Irrigators for implementing Reclamation’s water allocation decisions for the Project. See Klamath Water Users Ass’n v. Patterson, 15 F.Supp.2d 990, 997 (D.Or.1998) (“Klamath”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. I. Background The Project, located within the Upper Klamath and Lost River Basins in Oregon and California, was authorized by Congress in 1905 pursuant to the Reclamation Act of 1902, ch. 1098, 32 Stat. 388 (1902). In 1905, in accordance with state water law and the Reclamation Act, the United States appropriated all available water rights in the Klamath River and Lost River and their tributaries in Oregon and began constructing a series of water diversion projects. In 1917, the United States and Copco entered into an agreement under which Copco would construct the Dam and then convey it to the United States. In return, Copco and the United States entered into a fifty-year contract (1917-1967) that gave Copco the right to operate the Dam. The Contract was amended in 1920 and 1930, and was renewed in 1956 for an additional fifty years (1956-2006). The United States and Copco are the only named parties to the Contract. The Contract, as renewed in 1956, remains in effect and is the subject of controversy here. The Contract states that it was entered into pursuant to the Reclamation Act and “acts of Congress relating to the preservation and development of fish and wildlife resources.” The parties do not dispute that the Dam was built to help the United States satisfy its contractual obligations to water users' in the basin, including the Irrigators. However, the project served other federal purposes, such as impounding water to flood the adjacent wildlife refuges. Cop-co’s interest related primarily to controlling the flow of water to the Copco-owned hydroelectric facilities downstream from the Dam. Operation of the Dam is also subject to the requirements of federal statutes, such as the Endangered Species Act (“ESA.”) The coho salmon of the lower Klamath River has been listed as threatened, and two species of sucker fish, the Lost River and shortnose suckers," }, { "docid": "18603937", "title": "", "text": "multi-purpose projects under the Flood Control Act of 1944, and the Bureau was authorized by the 1944 Act and the Reclamation Project Act of 1939 to enter into the subject contracts. THIRD CLAIM FOR RELIEF Plaintiffs allege that the defendants in their water marketing program have modified the Yellowtail and Boysen Reservoirs project purposes to include storage for industrial water, and that such modification seriously changes the purpose for which these projects were authorized and constructed. Plaintiffs further contend that defendants have failed to seek the required approval of Congress for such modifications and changes, in violation of 43 U.S.C. § 390b(d). Plaintiffs have also requested to dismiss without prejudice this claim for relief. Likewise, IT IS ORDERED that the claim is dismissed with prejudice. The Water Supply Act is a separate and distinct authorized procedure from that given by Congress in Section 9(c) of the Reclamation Project Act of 1939 under which statutory authority the Bureau of Reclamation and Secretary of the Interior proceeded in this case. As the Water Supply Act declares: The provisions of this subsection insofar as they relate to the Bureau of Reclamation and the Secretary of the Interior shall be alternative to and not a substitute for the provisions of the Reclamation Projects Act of 1939 (53 Stat. 1187) relating to the same subject. (43 U.S.C. § 390b(b).) FOURTH CLAIM FOR RELIEF Plaintiffs allege that the defendants in their industrial water marketing program have made contracts relating to municipal water supply and miscellaneous purposes, including industrial purposes; and that the defendant Secretary has failed to make required judgment that such contracts will not impair the efficiency of the Yellowtail and Boysen projects for irrigation purposes, in violation of the Reclamation Project Act of 1939 (43 U.S.C. § 485h(c)). DISCUSSION The defendants admit that under the water option contracts, water will be used for industrial purposes. Such activities and contracts were authorized by the Pick-Sloan Missouri Basin Program. Section 9(a), Flood Control Act of 1944. The Secretary is required by Section 9(c) of the Reclamation Project Act of 1939 (53 Stat. 1194, 43 U.S.C. §" }, { "docid": "18603935", "title": "", "text": "for industrial use under the authority of the 1939 Act and has not objected. See, for example, Hearings on H.R. 14159 Before the Senate Comm. on Appropriations, 91st Cong., 1st Sess., pt. 3, at 2788 (1969); Hearings on Public Works Appropriations for 1972, Before the Senate Comm, on Appropriations, 92nd Cong., 1st Sess., at 29 (1971); Hearings on Yellowtail Dam Before the Sub-comm. on Irrigation and Reclamation of the House Comm, on Interior and Insular Affairs, 83rd Cong., 2d Sess., ser. 13 (1954). In 361.91 Acres, supra at page 3, Judge Murray observed that, because the Clark Canyon Dam and Reservoir were intended to serve multiple-purpose functions as described in S.Doc. No. 191, the Courts had “little or no” authority to interfere with the manner in which the Secretaries of the Interior and Defense, within their respective jurisdictions, discharged their administrative responsibilities: The function of carrying out the overall plan for the development of the Missouri River Basin has been delegated by Congress to the Departments of Defense and Interior, and the Secretaries of those Departments have been vested with a wide discretion in carrying out such plan, and the courts have little or no authority to interfere with the exercise of that discretion. For the foregoing reasons, the defendants’ motion for summary judgment is granted. SECOND CLAIM FOR RELIEF Plaintiffs allege that defendants have not obtained approval of the industrial water option contracts by the appropriate water users’ associations; have failed to make the required showing that there is no other practicable source of water supply for these industrial purposes; and have contracted to furnish water for industrial purposes, the delivery of which will be detrimental to agricultural irrigation and the rights of pri- or appropriators; all in violation of 43 U.S.C. § 521. Subsequently, plaintiffs moved that this claim for relief be dismissed without prejudice. It is the Court’s order that this claim be dismissed with prejudice. The Miscellaneous Water Supply Act of 1920 (41 Stat. 451, 43 U.S.C. § 521) has no application to the issues in this law suit. Boysen and Yellowtail Projects were built as" }, { "docid": "11656158", "title": "", "text": "is distinctive in that it is adjacent to and in part runs through a major metropolitan area and, in part, through a more rural and rustic setting. 12. The Meramee Park Lake of the proposed Project will be formed by the construction of an earth and rock filled dam which will have a crest length of approximately 3,000 feet and a top width of 30 feet. The lake will extend at normal pool 33 miles upstream on the main stem of the Meramee River and approximately 6 and 4 miles respectively, on the Huzzah and Courtois creeks. The impoundment will have a surface area of 12,600 acres at normal pool, at an elevation of 675 feet above sea level, and 23,000 acres at the top of the flood control pool at a mean elevation of 709 feet above sea level. 13. The Meramec Park Lake Project is currently under construction by private contractors pursuant to contracts with the Corps of Engineers. The construction of an administrative building, an overlook, and an access road to the dam site are presently under way and are approximately 90% complete. 14. The Meramec Park Reservoir was first authorized by the Flood Control Act of 1938. Congress ratified it with modifications in the Flood Control Act of 1966. In addition, Congress ratified the Union Reservoir and first approved the Pine Ford, 1-38, Irondale Reservoirs and 19 Angler Use Sites. Aside from the Meramec Reservoir, none of the other proposed reservoirs have been funded for land acquisition or construction. Only the Union Dam Project has received funds for planning. 15. Each of these reservoirs, if built, would supplement the others and in functioning together would provide the largest measure of flood protection, recreational, water supply and navigational benefits to the Meramec Basin. 16. The evidence produced at trial indicates that the reservoirs as discussed in findings of fact numbers 14 and 15 are functionally independent. It is clear that, while each reservoir has an incremental effect in meeting the total flood control and water quality needs of the Meramec River Basin, the proposed dams would operate" }, { "docid": "18603925", "title": "", "text": "OPINION BATTIN, District Judge. This is a suit for injunctive and declaratory relief to restrain defendants from undertaking any activities in connection with the contracting, sale, or disposition of water for industrial purposes from the Yellowtail and Boysen Reservoirs located in Montana and Wyoming. The amended complaint presents eight claims for relief. FIRST CLAIM FOR RELIEF Plaintiffs argue that the United States Congress authorized the construction and operation of Yellowtail and Boysen Reservoirs for the exclusive purposes of providing water for agricultural irrigation, hydroelectric power, flood and silt control, and supplementation of stream flow, but there is no authorization for use of waters from these reservoirs for industrial purposes. The plaintiffs contend that defendants have failed to fulfill this primary legislative purpose because massive amounts of water under the water option contracts have been diverted away from Congressionally intended agricultural purposes, for use by private industry in violation of the Flood Control Act of 1944, 58 Stat. 887, and the Reclamation Act of 1902, 43 U.S.C. § 391, et seq., as amended. 1. INTRODUCTION The particular provisions of the Reclamation Act of 1902 (32 Stat. 388, 43 U.S.C. 391, et seq.) relied upon by plaintiffs are not applicable to the industrial water option contracts. Furthermore, the Flood Control Act of 1944 (58 Stat. 887, 33 U.S.C. § 701-1, et seq.) authorizes use of project water for industrial purposes and also expressly authorizes the marketing thereof under federal reclamation law. The Court also concludes that the Bureau of Reclamation and Secretary of the Interior legally proceeded to process, approve and execute the water option contracts pursuant to the authority contained in Section 9(c) of the Reclamation Project Act of 1939 (53 Stat. 1194, 43 U.S.C. § 485h(c)). 2. DISCUSSION a. Industrial Use. In 1944, Congress authorized development of the Missouri River Basin in a comprehensive plan that contemplated multipurpose use of water resources. Prompted by flood damage and the need for a controlled water supply on the Missouri River and its tributaries, the Corps of Engineers and the Bureau of Reclamation undertook studies to determine the most feasible means of development" }, { "docid": "8509909", "title": "", "text": "Reclamation plans on storage needs for all purposes can be composed.” Id., at 122-123. The Pick and Sloan Plans differed with one another not only in their primary objectives, but also in several other important respects, such as the amount of expenditures and the number of projects. The engineering features of the two plans also were dissimilar. On the main stem of the Missouri River, the two plans called for different numbers of reservoirs of divergent sizes, and thus for inconsistent amounts of total water storage. Even where the two plans agreed on the need for a particular reservoir at a particular location, which they did at Oahe and at Fort Randall, they envisioned those projects very differently; as noted above, for example, the Sloan Plan proposed that Lake Oahe would hold more than three times as much water as called for in the Pick Plan, at an additional cost of more than $20 million. Obviously Congress could not proceed with both plans at once. In order to arrive at a single set of projects for development of the Basin, a Committee composed of two representatives each from the Corps of Engineers and the Bureau of Reclamation was appointed to review the engineering features of the two plans. This Committee essentially combined the determinations made by the Corps about the projects that would be needed for flood control and navigation and the determinations made by the Bureau about the additional projects that would be needed for irrigation. After meeting for two days, the Committee produced an engineering report that recommended most of the specific developments that had been set out in the Sloan Plan, but provided for six main-stem reservoirs on the Missouri River. The Oahe Reservoir was to be created by construction of a high dam and to have a gross storage capacity of 19 million acre-feet of water. The stated purposes of Lake Oahe were to allow “the irrigation of 750,000 acres of land in the James River Basin as well as to provide useful storage for flood control, navigation, the development of hydroelectric power, and other purposes.”" }, { "docid": "17816075", "title": "", "text": "result in interference with their vested water rights. Acreage limitations were not discussed. Out of deference to the President’s position that the Kings River project should be built by the Bureau, this project was not included in the comprehensive flood control bill reported by the House Flood Control Committee in 1941. The committee issued a separate report recommending construction of the dam by the Corps of Engineers, but no further action was taken. Hearings before the House Flood Control Committee resumed in 1943 and continued in 1944. In 1944 President Roosevelt wrote to Congressman Whittington, chairman of the committee, modifying the Administration’s earlier position. The President reaffirmed his view that the Kings River and Kern River projects were predominantly for irrigation and should therefore be built and operated by the Bureau of Reclamation — a view that had been rejected by the committee in its 1941 report. However, the President added a new suggestion, namely, that Congress provide for multiple-agency administration of multiple-purpose projects. The President proposed that whatever agency constructed a multiple-purpose project, each agency having an interest in the project should be given responsibility for administering its interest in accordance with its own legislation and policies. “For example,” the President wrote, “the Bureau of Reclamation in the Department of the Interior should administer, under the Reclamation laws and its general policies, those irrigation benefits and phases of projects built by the Corps of Engineers.” It is important to note that this suggestion was directed specifically to Pine Flat Dam on the Kings River and to the adjacent Kern River project. It provided the basis for the compromise eventually reflected in section 8 of the 1944 Act. Thus, the Administration sought to have the reclamation laws, and especially the excess land provisions, applied to the Kings River and Kern River projects in two ways: by having these projects built and operated by the Bureau of Reclamation or, failing that, by having use of these projects for irrigation administered by the Bureau under the reclamation laws. The Administration failed in its efforts to have Pine Flat Dam constructed by the" }, { "docid": "17816074", "title": "", "text": "under regulations prescribed by the Secretary of War. The Bureau of Reclamation proposed that the dam be built and operated by the Bureau. The recommended schedule for payment of allocable irrigation construction costs by water users also differed. The Bureau recommended annual installments to be paid over 40 years (the usual repayment period under reclamation law). The Corps recommended payment of a lump sum representing the discounted present value of the 40 annual installments. President Roosevelt concluded that the project was “dominantly an irrigation undertaking and is suited to operation and maintenance under the reclamation law.” He endorsed the Interior Department’s proposals that the Bureau of Reclamation construct, operate, and maintain the Kings River project and that repayment be made in 40 annual installments under prevailing reclamation policy. Hearings on the proposals were held before the House Flood Control Committee in 1940 and 1941. Local water users opposed the Bureau’s proposal and endorsed that of the Corps of Engineers. The Kings River-Pine Flat Association was especially concerned that Bureau control over release of water might result in interference with their vested water rights. Acreage limitations were not discussed. Out of deference to the President’s position that the Kings River project should be built by the Bureau, this project was not included in the comprehensive flood control bill reported by the House Flood Control Committee in 1941. The committee issued a separate report recommending construction of the dam by the Corps of Engineers, but no further action was taken. Hearings before the House Flood Control Committee resumed in 1943 and continued in 1944. In 1944 President Roosevelt wrote to Congressman Whittington, chairman of the committee, modifying the Administration’s earlier position. The President reaffirmed his view that the Kings River and Kern River projects were predominantly for irrigation and should therefore be built and operated by the Bureau of Reclamation — a view that had been rejected by the committee in its 1941 report. However, the President added a new suggestion, namely, that Congress provide for multiple-agency administration of multiple-purpose projects. The President proposed that whatever agency constructed a multiple-purpose project, each" }, { "docid": "17816082", "title": "", "text": "overwhelming evidence was that it represented a victory for the Administration’s position that the irrigation uses of the Kings River project and other projects authorized by the bill were to conform to the reclamation laws, and specifically to acre- age limitations, even though the projects were to be built by the Corps of Engineers. All that can be garnered to lend possible support to appellees’ contrary interpretation is language in the committee report and in Chairman Whittington’s remarks on the floor that really consists of nothing more than a sympathetic recitation of arguments advanced by water users against application of the reclamation laws to the Pine Flat project. Subsequent proceedings in the Senate removed any possible doubt as to Congress’ intention to apply acreage limitations to the Kings River project. Hearings before a subcommittee of the Senate Commerce Committee produced the same general conflict of views that had developed in hearings before the House Flood Control Committee. Again California interests were arrayed against the Administration, which was supported by organizations of labor and small farmers. Again the controversy centered upon the application of acreage limitations, particularly to projects in the Sacramento-San Joaquin River Basin, including Pine Flat Dam. Again proponents of acreage limitation pressed the historical purposes served by such provisions — spreading the federal subsidy, avoiding speculation, creating family farms — while opponents again pressed the features of the Kings River and Kern River projects that assertedly made application of acreage limitations inappropriate. Administration spokesmen again sought to have these projects built by the Bureau, rather than the Corps of Engineers, and expressed their disappointment in the House decision to the contrary; but they also reaffirmed the President’s alternative suggestion that water made available for irrigation by projects built by the Corps of Engineers be utilized in accordance with the reclamation laws, including acreage limitations. The issue was never in doubt. The subcommittee was obviously impressed with the experience and skill of the Corps of Engineers in building and operating dams for effective flood control. On the other hand, this same subcommittee had recently demonstrated its adherence to enforcement" }, { "docid": "9888899", "title": "", "text": "its legislative history and held that the Act authorized industrial use of project water, including water from the Boysen and Yellowtail Reservoirs. The court found that marketing of water for such purposes must be done in accordance with federal reclamation law and, under this law, the Secretary of Interior had authority to sell water for industrial use only if “it will not impair the efficiency of the project for irrigation purposes.” 43 U.S.C. § 485h(c). This court agrees with the district court’s interpretation of the relevant statutes and legislative history and affirms the district court’s ruling on this issue. Proper Exercise of Authority Appellants claim that the Secretary of Interior did not properly exercise his authority when determining that the marketing program for industrial water would not impair the efficiency of the projects for irrigation purposes. The district court carefully set forth the scope of the Secretary of Interior’s authority and the standard for review of the Secretary’s decision. The district court properly concluded that the administrative record provides sufficient explanation and justification for the Secretary’s action and there was no error in the administrative determination. Environmental Impact Statements The Yellowtail and Boysen Reservoirs are located in the Northern Great Plains, a region which includes portions of southeast Montana, northeast Wyoming, and western North and South Dakota. The Yellowstone River Basin covers much of this region with the Yellowstone River itself flowing eastward from Yellowstone National Park across southern Montana to join the Missouri River at the Montana-North Dakota border. Three major tributaries flow into the Yellowstone: the Bighorn, Tongue and Powder Rivers. The Yellowtail Reservoir is located on the Bighorn River and the Boy-sen Reservoir is on the Wind River, a tributary to the Bighorn and Yellowstone Rivers. Water is a precious and limited resource throughout the Northern Great Plains. The region is sparsely populated and semiarid with an economy based predominately on farming and ranching. This region, however, also contains one of the richest strippable coal deposits in the world, the “Fort-Union Formation.” Private industry is active in conducting feasibility studies of petro-chemical development based upon these coal" }, { "docid": "18603932", "title": "", "text": "taken for use in connection with the Clark Canyon Dam and Reservoir, East Bench Unit, Missouri River Basin Project. The Missouri River Basin Project was authorized by Section 9 of the Flood Control Act of December 22, 1944 (58 Stat. 887), and Section 18 of the Flood Control Act of July 24, 1946 (60 Stat. 641). Section 9(a) of the Flood Control Act of December 22, 1944, approved the general comprehensive plans for the development of the Missouri River Basin set forth in Senate Document 191, and House Document 475, 78th Congress, Second Session. The Clark Canyon Dam and Reservoir is included in the comprehensive plan for the development of the Missouri River Basin on page 62 of Senate Document 191. Senate Document 191, at page 13, indicates that considerations for the protection of fish and wildlife and for recreation were included in the overall plan for the development of the Missouri River Basin, as well as flood control, irrigation and power. (Order dated April 10, 1965, at page 3.) Judge Murray noted that page 13 of S.Doc. No. 191 provided for multiple purpose objectives for the projects therein identified; that the very same page of S.Doc. No. 191 also included industrial use within project purposes, and declared, “In the future there will also be greater requirement for industrial water supplies.” c. Secretarial Authorization to Sell Industrial Water. Section 9(c) of the Reclamation Project Act of 1939, 43 U.S.C. § 485h(c), authorizes the Secretary of the Interior to enter into contracts to supply project water for “municipal water supply or miscellaneous purposes.” In many instances, industrial water use would qualify both as a “municipal” and “miscellaneous” water use. Municipal and industrial uses are closely associated with each other and are sometimes grouped into a single use designated as “M&I” use. Congress has also made express declarations that municipal use includes industrial use; illustrated, for example, is the Act of February 25,1956, 70 Stat. 29, 43 U.S.C. § 615a (Washita Project), where it is provided that: Allocations to municipal water supply, including domestic, manufacturing, and in dustrial uses, shall be repayable" }, { "docid": "18603934", "title": "", "text": "through contracts with municipal corporations, or other organizations as defined by section 2, Reclamation Project Act of 1989 (53 Stat. 1187). The Water Supply Act of 1958 further confirms the Congressional intent of the 1939 Act authorizing the sale of industrial water. Section 301 of the 1958 Act (43 U.S.C. § 390b) authorizes the Secretary to impound and store water in reclamation project facilities “for present or anticipated future demand or need for municipal or industrial water.” And Section 301(b) of the same Act expressly declares that such authority “shall be an alternative to and not a substitute for the provisions of the Reclamation Project Act of 1939 (53 Stat. 1087) relating to the same project.” The clearest Congressional declaration came in the Act of June 21, 1963, 77 Stat. 68, wherein Congress expressly authorized the renewal of contracts previously made by the Secretary under authority of the Reclamation Project Act of 1939 for “municipal, domestic or industrial” purposes. Furthermore, Congress has been made aware of the Secretary’s actions in selling the reclamation project water for industrial use under the authority of the 1939 Act and has not objected. See, for example, Hearings on H.R. 14159 Before the Senate Comm. on Appropriations, 91st Cong., 1st Sess., pt. 3, at 2788 (1969); Hearings on Public Works Appropriations for 1972, Before the Senate Comm, on Appropriations, 92nd Cong., 1st Sess., at 29 (1971); Hearings on Yellowtail Dam Before the Sub-comm. on Irrigation and Reclamation of the House Comm, on Interior and Insular Affairs, 83rd Cong., 2d Sess., ser. 13 (1954). In 361.91 Acres, supra at page 3, Judge Murray observed that, because the Clark Canyon Dam and Reservoir were intended to serve multiple-purpose functions as described in S.Doc. No. 191, the Courts had “little or no” authority to interfere with the manner in which the Secretaries of the Interior and Defense, within their respective jurisdictions, discharged their administrative responsibilities: The function of carrying out the overall plan for the development of the Missouri River Basin has been delegated by Congress to the Departments of Defense and Interior, and the Secretaries of those" } ]

[ { "docid": "22791540", "title": "", "text": "are unsuitable for judicial review because they involve foreign relations and that a federal court, therefore, lacks the judicial power to command the Secretary of Commerce, an Executive Branch official, to dishonor and repudiate an international agreement. Relying on the political question doctrine, and quoting Baker v. Carr, 369 U. S. 186, 217 (1969), the Japanese petitioners argue that the danger of “embarrassment from multifarious pronouncements by various departments on one question” bars any judicial resolution of the instant controversy. We disagree. Baker carefully pointed out that not every matter touching on politics is a political question, id., at 209, and more specifically, that it is “error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Id., at 211. The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill suited to make such decisions, as “courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature.” United States ex rel. Joseph v. Cannon, 206 U. S. App. D. C. 405, 411, 642 F. 2d 1373, 1379 (1981) (footnote omitted), cert. denied, 455 U. S. 999 (1982). As Baker plainly held, however, the courts have the authority to construe treaties and executive agreements, and it goes without saying that interpreting congressional legislation is a recurring and accepted task for the federal courts. It is also evident that the challenge to the Secretary’s decision not to certify Japan for harvesting whales in excess of IWC quotas presents a purely legal question of statutory interpretation. The Court must first determine the nature and scope of the duty imposed upon the Secretary by the Amendments, a decision which calls for applying no more than the traditional rules of statutory construction, and then applying this analysis to the particular set of facts presented below. We are cognizant of the interplay between these Amendments and the conduct of this Nation’s foreign relations, and we recognize" } ]

[ { "docid": "13456538", "title": "", "text": "his claims should still be dismissed because they raise non-justiciable political questions. Like standing, the political question doctrine is an aspect of “the concept of justiciability, which expresses the jurisdictional limitations imposed on the federal courts by the ‘case or controversy’ requirement of Article III of the Constitution.” Schlesinger, 418 U.S. at 215, 94 S.Ct. 2925. The political question doctrine “is ‘essentially a function of the separation of powers,’ ” El-Shifa, 607 F.3d at 840 (quoting Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)), and “ ‘excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.’ ” Id. (quoting Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986)). The precise “ ‘contours’ ” of the political question doctrine remain “ ‘murky and unsettled.’ ” Harbury v. Hayden, 522 F.3d 413, 418 (D.C.Cir.2008) (quoting Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 803 n. 3 (D.C.Cir.1984) (Bork, J., concurring)); see also Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1514 (D.C.Cir.1984) (en banc), vacated on other grounds, 471 U.S. 1113, 105 S.Ct. 2353, 86 L.Ed.2d 255 (1985) (describing the “shifting contours and uncertain underpinnings” of the political question doctrine). Still, the Supreme Court has articulated six factors which are said to be “[p]rominent on the surface” of cases involving non-justiciable political questions: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudieial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Baker, 369 U.S. at 217, 82 S.Ct. 691. The first" }, { "docid": "19875398", "title": "", "text": "States Supreme Court held that “[questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 170, 2 L.Ed. 60 (1803). “The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confínes of the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). To determine if a case or controversy constitutes a non-justiciable political question, the Court must ascertain “whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.” Baker, 369 U.S. at 198, 82 S.Ct. 691. In Baker, the Supreme Court set forth the following factors to be analyzed in this determination: Prominent on the surface of any case held to involve a political question is found (1) “a textually demonstrable constitutional commitment of the issue to a coordinate political department;” (2) “a lack of judicially discoverable and manageable standards for resolving it;” (3) “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;” (4) “the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;” (5) “an unusual need for unquestioning adherence to a political decision already made;” (6) “or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” 369 U.S. at 217, 82 S.Ct. 691. “A finding of any one of the \"six factors indicates the presence of a political question.” Gross, 456 F.3d at 377 (citing INS v. Chadha, 462 U.S. 919, 941, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983)). However, “[u]nless one of these formulations is inextricable from the case at bar, there should be no non-justiciability on the ground that a political question is present.” Baker, 369 U.S. at 217, 82 S.Ct. 691 (emphasis added). In evaluating whether a case" }, { "docid": "23614246", "title": "", "text": "fairly and properly conducted, it is ill suited to determine whether a particular oscilloscope has an impact on war and peace. We therefore hold that the Secretary’s decision to include particular items on the Commodity Control List is not subject to challenge as a defense to a charge of violating the Export Administration Act, such that discovery of the basis for his decision may be ordered for that reason alone. VI The government contends that in any event the Secretary’s decision to require export controls is an unreviewable political question. “Political questions” are controversies which revolve around policy choices and value determinations constitutionally committed to the Congress or the Executive Branch, and are not subject to judicial review. Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 230, 106 S.Ct. 2860, 2865-66, 92 L.Ed.2d 166 (1986). In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Supreme Court identified six independent factors indicative of a political question: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) a lack of judicially discoverable and manageable standards for resolving it; (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; (4) the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Id. at 217, 82 S.Ct. at 710. Implicating any one of these factors renders a question “political” and thus nonjusticiable. Armstrong v. United States, 759 F.2d 1378, 1380 (9th Cir.1985). The district court declined to decide if the political question doctrine applies. The Mandéis argue that it correctly determined that judicial review limited to whether there was any basis in fact for the Secretary’s decision raises no political question concerns. Although the basis in fact inquiry is the narrowest form of judicial review, Sanger v. Seamans, 507 F.2d 814, 816 (9th Cir.1974), it is nevertheless a" }, { "docid": "15234648", "title": "", "text": "U.S. at 229-30, 106 S.Ct. 2860 (“[I]t is ‘error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.’” (quoting Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962))). Whether a case presents a nonjustieiable political question requires a more “discriminating inquiry ” by analyzing the six factors set forth by the Supreme Court in Baker v. Carr, 369 U.S. at 217, 82 S.Ct. 691. The six factors are: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of the government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. El-Shifa, 378 F.3d at 1361 (quoting Baker, 369 U.S. at 217, 82 S.Ct. 691) (alterations in original). “These tests are probably listed in descending order of both importance and certainty.” Vieth, 541 U.S. at 278, 124 S.Ct. 1769. But if at least one of the six Baker tests “is inextricably present in the facts and circumstances in this case,” it presents a nonjustieiable political question. El-Shifa, 378 F.3d at 1362 (citing Baker, 369 U.S. at 217, 82 S.Ct. 691). Here, defendant maintains that all six of the Baker factors are present; plaintiff argues that none of them are. The Court addresses each of the factors in turn. 1. A Textually Demonstrable Constitutional Commitment of the Issue to a Coordinate Political Department The Government argues that the foreign and defense spheres are “textually committed by the Constitution to the political branches.” Def.’s Mot. at 26 (citing Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 97 L.Ed. 842 (1953); Chicago & S. Air Lines v. Waterman SS Corp., 333 U.S. 103, 111, 68 S.Ct. 431," }, { "docid": "11131365", "title": "", "text": "sum, the case must be dismissed because the successful invocation of the state secrets privilege would prevent the plaintiff from stating a claim upon which relief may be granted. 2. Political Question The Supreme Court in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), listed six characteristics of political question cases: a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. In addition, “[ujnless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjustici-ability on the ground of a political question’s presence.” Id. The Government and the private defendants argue that at least three of these elements are present in this case: foreign policy and military operations are constitutionally committed to the executive branch; there is a lack of judicially manageable standards to resolve the case because the incident was military; there is the potential for embarrassment from multifarious pronouncements by various branches because of diplomatic efforts initiated by the Department of State. The private defendants also argue that a decision by the court in this case would demonstrate a lack of respect for coordinate branches. Article II, section 2 of the United States Constitution gives the President control of foreign affairs and of the military as Commander in Chief of the armed forces. The Supreme Court stated in Haig v. Agee, 453 U.S. 280, 292, 101 S.Ct. 2766, 2774, 69 L.Ed.2d 640 (1980) that “[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.” In Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2446, 37 L.Ed.2d 407" }, { "docid": "15234647", "title": "", "text": "(Fed.Cir.2004) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803)), “[s]ometimes ... the law is that the judicial department has no business entertaining [a] claim of unlawfulness — because the question is entrusted to one of the political branches or involves no judicially enforceable rights.” Id. (quoting Vieth v. Jubelirer, 541 U.S. 267, 277, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (citations omitted)). Such questions are so-called “nonjustieiable” or “political questions.” Id. Referencing the “longstanding doctrine that decisions grounded in defense and foreign policy are responsibilities of the executive branch and ... not subject to judicial review,” defendant argues that the political question doctrine bars this Court from reviewing plaintiffs claims in this case. Def.’s Mot. at 25 (citing Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986)). While the political question doctrine renders many executive decisions over defense and foreign policy outside the province of the courts, defendant’s characterization of the doctrine overstates its scope. See Japan Whaling Ass’n, 478 U.S. at 229-30, 106 S.Ct. 2860 (“[I]t is ‘error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.’” (quoting Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962))). Whether a case presents a nonjustieiable political question requires a more “discriminating inquiry ” by analyzing the six factors set forth by the Supreme Court in Baker v. Carr, 369 U.S. at 217, 82 S.Ct. 691. The six factors are: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of the government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question." }, { "docid": "19784269", "title": "", "text": "six factors identified in Baker v. Cart' to determine whether an issue should be deemed a nonjustieiable “political question.” 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). These factors are: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by-various departments on one question. Bancoult v. McNamara, 445 F.3d 427, 432 (D.C.Cir.2006) (quoting Baker, 369 U.S. at 217, 82 S.Ct. 691). Any one of these factors may be sufficient to render an inquiry a political question, “but ‘unless one of these formulations is inextricable from the case at bar,’ we may not dismiss the claims as nonjusticiable under the political question doctrine.” Id. at 432-33, 445 F.3d 427 (quoting Baker, 369 U.S. at 217, 82 S.Ct. 691). This ease implicates none of these concerns. First, this is manifestly not a case involving the “textual commitment” of the given subject matter to a coordinate branch of government. The USTR, as part of the Executive Office of the President, undoubtedly has a role in the creation and management of U.S. trade policy. See Fed-Mogul, 63 F.3d at 1581 (“Trade policy is an increasingly important aspect of foreign policy, an area in which the executive branch is traditionally accorded considerable deference.”). Nevertheless, Congress also possesses some constitutional authority to regulate trade with foreign nations. U.S. Const, art. I, § 8, cl. 3. In the context of section 129, Congress has intentionally instituted a system of checks and balances, requiring the USTR to consult with Congress, see 19 U.S.C. § 3538(a)(3) and (5), and giving the ITC, an independent agency, authority to decide whether it may, under Title VII, take steps" }, { "docid": "265728", "title": "", "text": "that revolve around policy choices and value determinations constitutionally committed for resolution to the legislative or executive branches. Japan Whaling Ass'n v. American Cetacean Soc., 478 U.S. 221, 230, 106 S.Ct. 2860, 2866, 92 L.Ed.2d 166 (1986); Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir.), cert. denied, - U.S. -, 117 S.Ct. 96, 136 L.Ed.2d 51 (1996). In Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), the Supreme Court identffied six hallmarks of political questions, any one of which may carry a controversy beyond justiciable bounds: [lii a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] a lack of judicially discoverable and manageable standards for resolving it; [3] the impossibifity of deciding without an initial policy determinatioli of a kind clearly for nonjudicial discretion; [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. For invocation of the. political question doctrine to be appropriate, at least one of these characteristics must be evident. Id. at 217, 82 S.Ct. at 710. Foreign policy and military affairs figure prominently among the areas in which the political question doctrine has been implicated. The Supreme Court has declared that \"[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.\" Haig v. Agee, 453 U.S. 280, 292, 101 S.Ct. 2766, 2774, 69 L.Ed.2d 640 (1981). The Constitution commits the conduct of foreign affairs to the executive and legislative branches of government. See, e.g., Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 311, 62 L.Ed. 726 (1918); Dickson, 521 F.2d at 236. At the same time, it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Baker, 369 U.S. at 211, 82 S.Ct. at 707. Ultimately, whether a foreign relations controversy lies beyond judicial cognizance requires \"discriminating" }, { "docid": "19980435", "title": "", "text": "(quoting Steel Co., 523 U.S. at 94-95, 118 S.Ct. 1003 (quoting Mansfield, C. & L.M. Ry. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884))). Therefore, we must “ ‘address questions pertaining to [our] jurisdiction before proceeding to the merits.’ ” Id. (quoting Tenet v. Doe, 544 U.S. 1, 6 n. 4, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005)). The Vice President argues that we do not have jurisdiction under the political question doctrine because this case involves the identity of a covert agent and thereby implicates foreign-policy and national-security decisions that are reserved to the Executive Branch. We conclude that the allegations do not implicate the political question doctrine. The political question doctrine “ ‘excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.’ ” Bancoult, 445 F.3d at 432 (quoting Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986)). The doctrine applies where, “[p]rominent on the surface” of the case is: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). “ ‘[UJnless one of these formulations is inextricable from the case at bar,’ we may not dismiss the claims as nonjusticiable under the political question doctrine.” Bancoult, 445 F.3d at 432-33 (quoting Baker, 369 U.S. at 217, 82 S.Ct. 691). The doctrine does not apply here. While “decision-making in the fields of foreign policy and" }, { "docid": "5553747", "title": "", "text": "do not decide, even implicitly, the merits of the EEOC’s Title VII suit against Peabody. That determination is for the district court on remand. B. Political Question Doctrine We next address the district court’s ruling that the case involves a nonjusticiable political question. In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Supreme Court, identified six factors that may make a question nonjusticiable: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Id. at 217. See also Los Angeles County Bar Ass’n v. Eu, 979 F.2d 697, 702 (9th Cir.1992) (quoting the six Baker factors). The Baker factors must be interpreted in light of the purpose of the political question doctrine, which “excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Association v. Am. Cetacean Society, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). The district court misunderstood the political question doctrine when it held that the third, fourth, and sixth Baker factors were implicated by the EEOC’s claim. A nonjusticiable political question exists when, to resolve a dispute, the court must make a policy judgment of a legislative nature, rather than resolving the dispute through legal and factual- analysis. See Koohi v. United States, 976 F.2d 1328, 1331 (9th Cir.1992). While it is true that the EEOC is challenging a lease that the DOI has approved, the district court was not called upon to make an “initial policy determination.” Resolving whether" }, { "docid": "18677294", "title": "", "text": "the United States, and not to the courts. Strangely enough, defendants rely upon Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) in support of their conclusion. They seem to forget that Baker v. Carr specifically overruled Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946), which held that reapportionment was a political question and not subject to adjudication by the courts. Nonetheless, defendants cite a discussion of six factors in Baker v. Carr which that Court said were characteristic of a political ques tion. The Court said, 369 U.S. on page 217, 82 S.Ct. on page 710: “Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” They claim that any one of these factors, if inextricable from the case at bar, is sufficient to make the question non justiciable. They further say that the application of these factors to this case compels such a conclusion. It is clear that Article 1, Section 2, Clause 3 is not a “textually demonstrable constitutional commitment” to the Congress of the question of whether the Constitution requires that the official population count be adjusted for a black and Hispanic under-count. All that Article says is that there shall be an actual enumeration every subsequent 10 years in such manner as Congress, by law, shall direct. All it does is impose on Congress the responsibility to provide for the taking of a decennial census. It does not say that Congress and Congress alone has the responsibility to decide the meaning of, and" }, { "docid": "19784058", "title": "", "text": "doctrine is “a function of the separation of powers,” Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and it “excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confínes of the Executive Branch.” Japan Whaling Assoc. v. American Cetacean Society, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). In Baker, the Supreme Court identified six hallmarks of political questions: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] a lack of judicially discoverable and manageable standards for resolving it; [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Baker, 369 U.S. at 217, 82 S.Ct. 691. At least one of these characteristics is required to invoke the political question doctrine. Aktepe v. United States, 105 F.3d 1400, 1403 (11th Cir.1997). The Eleventh Circuit applied the Baker v. Carr analysis in Aktepe. In Aktepe, two live missiles from a U.S. ship struck a Turkish ship during a NATO training exercise, and the Turkish Navy sailors sued the United States for damages. The training exercise was under the command of a U.S. Navy Admiral, and the U.S. ship was under the command of a U.S. Navy Vice Admiral. The complaint alleged negligence relating to Navy communication, training, and drill procedures. The Eleventh Circuit found that most, if not all, of Baker’s indicia of political questions were met. Aktepe, 105 F.3d at 1403. First, the court found that the legislative and executive branches have responsibility for military training procedures because there is a “textually demonstrable constitutional commitment” of military strategy to the political branches of the government: the Constitution confers upon the legislative and executive branches" }, { "docid": "14886263", "title": "", "text": "the validity of the espousal. But it would seem to me a bizarre result if we could uphold the espousal only after completing the sort of extended inquiry which the settlement was designed to prevent. Id. at 393 (footnote omitted). 3. Political question doctrine applied to the case at bar The Federal Circuit has adopted the six-factor inquiry set forth by the Supreme Court in Baker v. Carr: In Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Supreme Court set forth six tests for the presence of a nonjusticiable political question: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of the government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. The decision that a question is nonjusti-ciable is not one courts should make lightly. Although each Baker test is independent, id., we must satisfy ourselves that at least one of the six Baker tests is inextricably present in the facts and circumstances in this case before we may conclude that it presents a nonjustieiable political question, Baker, 396[369] U.S. at 217[, 82 S.Ct. 691]. El-Shifa Pharm. Indus. Co. v. United States, 378 F.3d 1346, 1361-62 (Fed.Cir.2004); see also Schneider v. Kissinger, 412 F.3d 190, 194 (D.C.Cir.2005). Defendant characterizes plaintiffs’ claims as involving an “attack upon the Compact and the Section 177 Agreement-agreements that were negotiated and executed by the Executive Branch and approved by Congress-[calling] into question the conduct of U.S. foreign relations.” Def.’s Br. filed Sept. 18, 2006, at 21. Defendant would subject plaintiffs’ claims to dismissal under the political question doctrine because they implicate the first, fourth, and sixth Baker factors. Because defendant sees" }, { "docid": "464204", "title": "", "text": "while adverting to the question, never acted to either approve or condemn the Mexico City Policy, but left the issue in the hands of the Executive. Accordingly, the Court concludes that the President did not exceed his authority under the FAA in adopting the Mexico City Policy and that AID did not exceed its authority in conditioning receipt of AID funds upon compliance with the Standard Clause. Thus, Count Three must be dismissed for failure to state a claim upon which relief can be granted. 2. Constitutional Claims Counts One and Two of the Complaint allege that the Mexico City Policy and AID Standard Clause deny them First Amendment and privacy rights under the United States Constitution. Defendants move to dismiss these claims on the grounds that they challenge a foreign policy determination by the Executive branch and, therefore, the Court is presented with a non-justiciable political question. Plaintiffs, on the other hand, insist that they challenge not “the wisdom of foreign policy, which they agree is a matter for Congress and the President,” but the constitutionality of the Clause, “as a means of implementing that policy.” Plaintiff’s Memorandum of Law at 22. The starting point in assessing whether a controversy presents a non-justiciable political question is Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). In that case the Supreme Court articulated six categories into which political questions generally fall. The Court stated: Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due co-ordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Id. at" }, { "docid": "19784057", "title": "", "text": "all aspects of control, organization, and planning of Army convoy operations. See generally F.M. 55-30. Army regulations provide that LOGCAP may be used for Army motor transport operations “when contractor support is determined to be the most effective, expeditious, or cost effective.” Id. at 1-11. A convoy commander oversees the preparation and planning of convoy operations, and convoy plans are made by military personnel pursuant to standing operating procedures, also developed by military personnel. Id. at 5-4, 5-5. The convoy plans made by military personnel include, inter alia, placement of vehicles in the convoy, distance between vehicles in the convoy, rate of speed of the convoy, and convoy escort and security. Id. at 5-3, 5-4. In preparing the convoy, the convoy commander must inspect convoy personnel and vehicles. Id. DISCUSSION The central question in this case is whether the political question doctrine applies to bar wrongful death and survivor claims by the family of a U.S. soldier killed during the war in Iraq due to the alleged negligence of a government contractor. The political question doctrine is “a function of the separation of powers,” Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and it “excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confínes of the Executive Branch.” Japan Whaling Assoc. v. American Cetacean Society, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). In Baker, the Supreme Court identified six hallmarks of political questions: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] a lack of judicially discoverable and manageable standards for resolving it; [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question." }, { "docid": "17836883", "title": "", "text": "7 L.Ed.2d 663 (1962). The Supreme Court has enumerated factors that may render a case non-justiciable: Prominent on the surface of any case held to involve a political question is found a[l] textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment of multifarious pronouncements by various departments on one question. Id. at 217, 82 S.Ct. 691. Applying the first four factors to the plaintiffs’ claims, the Court concludes that Baker and its progeny strongly favor dismissal of this case. 1. This Lawsuit Raises Policy Questions that Are Textually Committed to a Coordinate Branch of Government. The decision to support a coup of the Chilean Government to prevent Dr. Allende from coming to power, and the means by which the United States Government sought to effect that goal, implicate policy decisions in the murky realm of foreign affairs and national security best left to the political branches. “The conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative — ‘the political’ — Departments of the Government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.” Oetjen v. Cent. Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726 (1918); see also Comm. of United States Citizens, 859 F.2d at 933-34 (“[F]oreign policy decisions are the subject of just such a textual commitment.”). In Baker v. Carr, however, the Supreme Court cautioned that “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” 369 U.S. at 211, 82 S.Ct. 691. Determining whether a particular foreign affairs" }, { "docid": "933158", "title": "", "text": "category], the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.” The Court was merely admitting that they were not tribal wisemen dispensing divinely or theoretically inspired judgments, but were a court limited to the application of predetermined law. In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Supreme Court extensively reviewed the history and evolution of the political question. As a result of this survey, the Court identified a number of basic characteristics or considerations relevant to the existence of a political question. The Court held that the inextricable presence of one or more of these factors will render the case nonjusticiable under the Article III “case or controversy” requirement, and therefore, the Court would be without jurisdiction. In this most definitive pronouncement, the Court identified the following factors as relevant to the affirmative determination of the existence of a political question: (1) “a textually demonstrable commitment of the issue to a coordinate political department” (2) “a lack of judicially discoverable and manageable standards” (3) “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion” (4) “the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government” (5) “an unusual need for unquestioning adherence to a political decision already made” (6) “the potentiality of embarrassment from multifarious pronouncements by various departments on one question” 369 U.S. at 217, 82 S.Ct. at 710. In the instant case, nearly every one of the factors is present and the vitality of the political question in the arena of foreign relations is abundantly demonstrated. The ownership of lands disputed by foreign sovereigns is a political question of foreign relations, the resolution or neutrality of which is committed to the executive branch by the Constitution. As has been demonstrated, to determine whether a tortious conversion has occurred, it is necessary to determine the sovereign ownership of the portion of the continental shelf from" }, { "docid": "1610132", "title": "", "text": "lie in tort, not in the relations between Palestine and Israel. Defendants argue that this Court is the wrong forum to explore and evaluate the alleged “oppression” of Palestinians by Israel and the validity of Palestinian efforts to establish their own government through force; in other words, the Israeli-Palestinian conflict raises political questions beyond the purview of a United States District Court. In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Supreme Court identified six factors to distinguish a political question that is nonjusticiable: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Id. at 217, 82 S.Ct. 691; see Ungar, 402 F.3d at 280. The First Circuit again leads the way with its analysis. “This is a tort suit brought under a legislative scheme that Congress enacted for the express purpose of providing a legal remedy for injuries or death occasioned by acts of international terrorism.” Ungar, 402 F.3d at 280. There is no flaw in this Court’s ability to address Plaintiffs’ claims: Congress explicitly committed these issues to the federal courts under the ATA. Similarly, the Court has access to “judicially manageable standards for resolving the issue[s] before it,” id., from both existing ATA caselaw and traditional tort caselaw. The “initial policy determination” involved here has already been made by the U.S. Congress: Americans injured by terrorist acts can sue their attackers in U.S. courts and the Court can manage this case to resolution of Defendants’ alleged liability without “expressing lack of the respect due coordinate branches of government.” Baker, 369 U.S. at 217, 82 S.Ct." }, { "docid": "7828506", "title": "", "text": "“questions ... beyond the competence and proper institutional role of the federal courts.” Jugobank, 2 F.Supp.2d at 415. Factors that are “[p]rominent on the surface of any case held to involve a political question” include the following six: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] or an unusual need for unquestioning adherence to a political decision already made; [6] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), quoted in Kadic, 70 F.3d at 249, and Can, 14 F.3d at 163. All of the above six factors would be present in a judicial allocation of SFRY liabilities among the five state defendants in this action. 1. Judiciary Limitations: Successor-ship & Allocations Among Successors Limitations on judicial competence and role are the bases of the second and third factors: “a lack of judicially discoverable and manageable standards for resolving” the claims and “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion,” respectively. Succession determinations are inherently political, destined to be decided in negotiation, international institutions, arbitration, war, etc. In dismissing claims of successorship to the assets of the defunct South Vietnamese regime, Can established that successorship is the classic sort of political question that courts cannot decide: [Cjourts have no standards for judging a claim of succession to a former sovereign, even where that succession is only to property rather than to government power. The recognition of any rights of succession to a foreign sovereign’s power or property is in the first instance constitutionally committed to the executive branch of government, not to the judiciary. 14 F.3d at 163. In each of the SFRY" }, { "docid": "8434638", "title": "", "text": "in Baker v. Carr: In Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Supreme Court set forth six tests for the presence of a nonjusticiable political question: a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of the government; or [5] an unusual need for- unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. The decision that a question is nonjusti-ciable is not one courts should make lightly. Although each Baker test is independent, id,, we must satisfy ourselves that at least one of the six Baker tests is inextricably present in the facts and circumstances in this case before we may conclude that it presents a nonjusticiable political question, Baker, 369 U.S. at 217, 82 S.Ct. 691. El-Shifa Pharm. Indus. Co. v. United States, 378 F.3d 1346, 1361-62 (Fed.Cir.2004); see also Schneider v. Kissinger, 412 F.3d 190, 194 (D.C.Cir.2005). Defendant characterizes plaintiffs’ claims as involving an “attack upon the Compact and the Section 177 Agreement—agreements that were negotiated and executed by the Executive Branch and approved by Congress—[calling] into question the conduct of U.S. foreign relations.” Def.’s Br. filed Sept. 18, 2006, at 21. Defendant would subject plaintiffs’ claims to dismissal under the political question doctrine because they implicate the first, fourth, and sixth Baker factors. Because defendant sees “a textually demonstrable constitutional commitment of the issue to a coordinate political department” to conduct of foreign relations involving the United States. Baker, 369 U.S. at 217, 82 S.Ct. 691, defendant advocates Judge Sen-telle’s application of the political question doctrine as an alternative ground for dismissal in Antolok. See Antolok, 873 F.2d at 379-94 (opinion of Sentelle, J.). Defendant highlights Judge Sentelle’s reliance on the" } ]

[ { "docid": "21892983", "title": "", "text": "S.Ct. at 16, 65 L.Ed. at 128-129. . Hancock v. Train, supra note 68, 426 U.S. at 178-179, 96 S.Ct. at 2012-2013, 48 L.Ed.2d at 565-566 (state whose federally-approved implementation plan prohibits operation of air-polluting source without a state permit cannot require federally-owned or -operated installations to secure such permit); EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 211 -228, 96 S.Ct. 2022, 2028-2035, 48 L.Ed.2d 578, 587-596 (1976) (federal installations discharging water pollutants in a state having a federally-approved permit program not required to obtain such permits). . E. g., Kleppe v. New Mexico, supra note 63, 426 U.S. at 540, 96 S.Ct. at 2292, 49 L.Ed.2d at 43-44; United States v. San Francisco, 310 U.S. 16, 29-30, 60 S.Ct. 749, 756, 84 L.Ed. 1050, 1059-1060 (1940). Indeed, the Property Clause, U.S.Const., art. IV, § 3, cl. 2, which confers on Congress “Power to dispose of and make all needful Rules and Regulations respecting the .. . Property belonging to the United States,” provides a specific and independent constitutional basis for congressional action respecting federal property. Such “federal legislation necessarily overrides conflicting state laws under the Supremacy Clause.” Kleppe v. New Mexico, supra note 63, 426 U.S. at 542-543, 96 S.Ct. at 2293, 49 L.Ed.2d at 45. The Property Clause undoubtedly applies to both the Munsey Building and its landsite-for the definition accorded “property” is broad, see, e. g., Ashwander v. TVA, 297 U.S. 288, 330 -340, 56 S.Ct. 466, 475-480, 80 L.Ed. 688, 701 -707 (1936) (electrical energy potentially made available by construction of dam was property the United States was entitled to reduce to possession), and Congress was free to delegate its power over them to the PADC. See, e. g., United States v. Heinszen & Co., 206 U.S. 370, 384-385, 27 S.Ct. 742, 745-746, 51 L.Ed. 1098, 1103 (1907) (delegation to the President); United States v. Cassiagnol, 420 F.2d 868, 876-877 (4th Cir.), cert. denied, 397 U.S. 1044, 90 S.Ct. 1364, 25 L.Ed.2d 654 (1970) (delegation to Government Services Administration). . Hancock v. Train, supra note 68, 426 U.S. at 180," } ]

[ { "docid": "6507272", "title": "", "text": "facility.” 29 C.F.R. § 4.130(a)(38). See Menlo Service Corp. v. United States, 765 F.2d 805, 808 (9th Cir.1985). Plaintiff’s claims pleaded in this matter directly relate to its obligation under Contract No. 0-07-10-W0242 to operate and maintain the government-owned project. OTID seeks to recover repair costs and a substantial overrun in its costs to perform the operation and maintenance service required by the contract. Both parties assert that Contract No. 0-07-10-W0242 does not involve the procurement of construction, alteration, repair or maintenance of real property. However, the contract (clause 18(a)) does require OTID to maintain and repair a government-owned facility. Plaintiffs pleaded claims all relate to its contractual obligation to operate, maintain and repair the government-owned facility. Both parties assert that Contract No. 0-07-10-W0242 does not involve the disposal of personal property. Unless the government’s obligation under the contract to sell electric power to OTID for the operation of the works constitutes a disposal of personal property, a matter not briefed, the contract does not otherwise provide for such disposal of personal property by the government. Accordingly, it is concluded that Contract No. 0-07-10-W0242 does constitute a contract entered into by an executive agency for the procurement of services and for the procurement of the repair or maintenance of real property. As such, the contract fits within the categories set forth in 41 U.S.C. § 602(a). Bonneville Associates v. United States, supra. However, OTID asserts that the United States Court of Appeals for the Federal Circuit has ruled that certain contracts, arguably within the categories listed in 41 U.S.C. § 602(a), are not covered by the CDA, when the purpose for the Act is considered. Plaintiff argues that Contract No. 0-07-10-W0242 is similar to the contracts ruled not covered by the CDA in: G.E. Boggs & Associates, Inc. v. Roskens, supra; New Era Constr. v. United States, 890 F.2d 1152 (Fed.Cir.1989); and Pasteur v. United States, 814 F.2d 624 (Fed.Cir.1987). Contract No. 0-07-10-W0242 bears no similarity to the contract between G.E. Boggs & Associates, Inc., and the Government of the Syrian Arab Republic which was adopted by the United States" }, { "docid": "20098879", "title": "", "text": "(9th Cir.1991); see also Saul v. United States, 928 F.2d 829, 840 (9th Cir.1991). The CDA provides precisely the kind of mechanism that the Supreme Court and we have referred to. It is a complex procedural and substantive remedial scheme. That Act was intended to replace prior uncoordinated government contract procedures and to provide “a fair, balanced, and comprehensive statutory system of legal and administrative remedies in resolving Government contract claims.” S.Rep. No. 1118, 95th Cong., 2d Sess. (1978), reprinted in 1978 U.S.C.C.A.N. 5285. The CDA covers a vast range of government contracts. Its provisions apply to any express or implied contract entered into by an executive agency for the procurement of property; services; construction, alteration, repair, or maintenance of real property; or disposal of personal property. 41 U.S.C. § 602(a). “[A] timber sale contract is a contract for the disposal of personal property within the meaning of 41 U.S.C. § 602(a) of the CDA.” Mendenhall v. Kusicko, 857 F.2d 1378, 1379 (9th Cir.1988) (per curiam). Under the CDA, claims are first submitted to the contracting officer, who must issue a decision in writing. 41 U.S.C. § 605. After the contractor receives notice of the contracting officer’s decision, it may appeal the decision within 90 days to the agency board of contract appeals. 41 U.S.C. § 606. The members of that Board are selected in the same manner as administrative law judges. Review of the Board’s decision is by the Court of Appeals for the Federal Circuit. 41 U.S.C. § 607(g)(1)(A). In the alternative, the contractor may, within twelve months of receiving the contracting officer’s decision, file a direct action on the claim in the Claims Court. 41 U.S.C. § 609(a)(1). The Claims Court then has jurisdiction to render judgment on any claim arising under the CDA, including disputes concerning contract termination, rights in property, compliance with cost accounting standards, and other non-monetary disputes on which a contracting officer has issued a decision. 28 U.S.C. § 1491(a)(2). This case is a particularly powerful example of the wisdom that the courts have shown when they have deferred to Congress regarding remedies." }, { "docid": "15311452", "title": "", "text": "provides that the boards of contract appeals “shall have jurisdiction to decide any appeal from a decision of a contracting officer ... relative to a contract.” 41 U.S.C. § 607(d) (Supp. Y 1993). Section 3 of the CDA limits the applicability of the statute, and thus the board’s jurisdiction, to certain types of contracts: § 602 Applicability of law (a) Executive agency contracts Unless otherwise specifically provided herein, this chapter applies to any express or implied contract ... entered into by an executive agency for— (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair or maintenance of real property; or, (4) the disposal of personal property. 41 U.S.C. § 602(a) (Supp. V 1993) (emphasis added). Bonneville argues that the board lacked subject matter jurisdiction over its appeal and thus that Bonneville’s filing of a notice of appeal with the board was not a binding election. Specifically, Bonneville points out that § 602(a)(1) excludes contracts for the “procurement of ... real property” from the CDA. The primary purpose of the contract, Bonneville argues, was to convey real property to the government. Bonneville further contends that the dispute between the parties concerned the government’s procurement of the building, not the building’s repair and alteration, because the CO’s final decision relied in part on the contract’s warranty clause. Bonneville asserts that the warranty is inextricably linked to the sale of the building and thus the contract is excluded from the CDA under § 602(a)(1). As further support, Bonneville points out that paragraph 24 of the contract, which provides that disputes concerning Bonneville’s obligation to perform the repair and alteration work shall be subject to the CDA, does not state that disputes concerning the warranty of structural integrity are to be governed by the CDA. According to Bonneville, the parties recognized that warranty claims would be part and parcel of the sale of the building and could not be made subject to the CDA. The government, on the other hand, contends that Bonneville’s filing of a notice of appeal with" }, { "docid": "15606255", "title": "", "text": "urge that a surety is a “contractor” within the meaning of the CDA, and thus that the act, by its terms, is applicable to a surety’s performance bond. Second, they argue that even if a surety is not a “contractor”, the government must press its claim against the sureties in the claims court, because a surety’s liability is wholly derivative from its principal’s liability, and Morton, the principal, unquestionably was the CDA contractor. These arguments are unconvincing. 1. Applicability of the CDA to a Miller Act Surety. We have little difficulty rejecting the first of the sureties’ jurisdictional arguments, for it is clear from the language of the CDA and from its legislative history that a surety is not a “contractor” for CDA purposes. Section 3 of the CDA, 41 U.S.C. § 602, defines the contracts covered by the act. They include contracts for: (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair or maintenance of real property; or, (4) the disposal of personal property. A Miller Act performance bond fits none of these categories. The only one that arguably might include a surety is (2), a contract for the procurement of \"services.” But even if the surety agreement could be considered a contract to procure “services”, it is not a contract to which the government is a party. The bond, itself, was signed by the sureties and Morton; the government’s rights are as a third-party beneficiary, not as a party. It is true that the Miller Act required Morton to obtain the performance bond, 40 U.S.C. § 270a(a)(1), but that fact alone does not make the government a party to the bond. Since the CDA requires that the “contract” sued upon be a government contract, see 41 U.S.C. §§ 601(4), 602(a), we conclude that it does not apply to a bond issued by a surety to a contractor. See also Universal Surety Company v. United States, 10 Cl.Ct. 794, 800 (1986) (surety is “not a ‘contractor’ under CDA”). Nothing in the legislative history alters this" }, { "docid": "22104407", "title": "", "text": "then review those findings under the “clearly erroneous” standard); Holt v. United States, supra, 46 F.3d at 1003. However, review of the district court’s application of the law to the facts is de novo. Ynclan v. Department of Air Force, 943 F.2d 1388, 1390 (5th Cir.1991); Holt v. United States, supra. B. PLAINTIFF’S CLAIMS AGAINST THE WESTINGHOUSE DEFENDANTS ARE PREEMPTED UNDER THE CONTRACT DISPUTES ACT The Contract Disputes Act, 41 U.S.C. § 601 et seq. (the “CDA”), statutorily provides explicit dispute resolution procedures for all claims “relating to” any express or implied contract entered into by an executive agency for— (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair or maintenance of real property; or (4)the disposal of personal property. 41 U.S.C. §§ 602, 605. The procedures established for contractors’ claims are set forth in §§ 605-609 of the Act. Pursuant to the statutory scheme, a contractor’s claims against the government which relate to a contract must be submitted to a “contracting officer.” 41 U.S.C. § 605(a). The contracting officer’s decision is reviewable only through an appeal to an agency board of contract appeals. 41 U.S.C. §§ 605(b), 606, 607. The statute also provides an alternative to an agency board appeal by permitting an appeal through an action filed in the United States Court of Federal Claims. 41 U.S.C. § 609(a). The term “claims” as utilized in the CDA is to be given broad effect, encompassing all claims and disputes, whether arising under or relating to the contract. Z.AN. Company v. United States, 6 Cl.Ct. 298, 303 (1984). Thus, in Z.AN., the court held that the term “claim” as used in the CDA means an “assertion by one of the parties seeking, as a matter of right, the payment of money, adjustment, or interpretation of contract terms, or other relief arising under or relating to the contract.” Id. As set forth above, claims brought “relating to a contract” must be submitted to the appropriate contracting officer, with subsequent appeals to either the agency’s board of contract" }, { "docid": "7267496", "title": "", "text": "respect to the indemnification crossclaims of WRS and Carolina brought pursuant to CERCLA. D.WRS’s Contract Crossclaim WRS asserted an indemnification cross-claim against the EPA for breach of contract. The EPA moved to dismiss this claim pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, asserting that this court lacks subject matter jurisdiction to adjudicate this claim for two reasons. First, the EPA argues that an indemnification cross-claim based on breach of contract falls within the ambit of the Contract Disputes Act (“CDA”), see 41 U.S.C.A. §§ 601-613 (West 1987 & Supp.1993), and that WRS must first present its erossclaim to a contracting officer, see id. at § 605, and appeal the decision of the contracting officer to the board of contract appeals, see id. § 606, or as an alternative to appealing the decision of the contracting officer, file a claim in the United States Court of Federal Claims, see id. at § 609. The EPA argues that this administrative scheme must be exhausted as a prerequisite to suit. Second, the EPA asserts that regardless of whether WRS properly exhausted its administrative remedies under the CDA, this court lacks subject matter jurisdiction because 28 U.S.C.A. § 1346(a)(2) (West 1993) confers exclusive jurisdiction on the Court of Federal Claims for contract claims against the United States for damages in excess of $10,000.00. Conversely, WRS contends that jurisdiction is proper in this court under either the supplemental jurisdiction provision of 28 U.S.C.A. § 1367(a) (West 1993) or under the pendency of claims provision of 28 U.S.C.A. § 1500 (West Supp.1993). The court first examines the exhaustion requirement before turning to the issue of exclusivity of jurisdiction in the Court of Federal Claims. 1. Exhaustion of Administrative Remedies The CDA provides, in pertinent part, that this chapter applies to any express or implied contract ... entered into by an executive agency for— (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repaii- or maintenance of real property; or (4) the disposal of personal property. 41 U.S.C.A. § 602(a)" }, { "docid": "19301911", "title": "", "text": "as to counts 1 and 4. 1. The Court has jurisdiction under the Tticker Act. Defendant argues that the Court must dismiss Count 1 of Plaintiffs complaint for lack of subject matter jurisdiction because a plaintiff may not file suit in the Court of Federal Claims under the Contract Disputes Act (“CDA”) unless it has first obtained a final decision from a contracting officer. The CDA mandates that “[a]ll claims by a contractor against the government relating to a contract shall be in writing and shall be submitted to the contracting officer for a decision.” 41 U.S.C. § 605(a) (2006). Furthermore, a plaintiff may not advance a CDA claim in this Court until a contracting officer has reached a final decision. Bath Iron Works, Corp. v. United States, 20 F.3d 1567, 1578 (Fed.Cir.1994), rehearing en banc denied, (2001) (citing Milmark Servs., Inc. v. United States, 231 Ct.Cl. 954, 1982 WL 25817, *2 (Sept. 3, 1982)). Plaintiff admits that it filed its original complaint in this Court on February 29, 2008 and did not submit a claim to a contracting officer until March 29, 2008. However, Plaintiff argues that Count 1, which made up the entirety of Plaintiffs original complaint, falls under the Tucker Act and not the CDA. The Court agrees with Plaintiff that count 1 falls under the jurisdiction of the Tucker Act and not the CDA. The Tucker Act grants the Court of Federal Claims broad jurisdiction over “express or implied contracts) with the United States.” 28 U.S.C. § 1491(a)(1). By contrast, the CDA only applies to express or implied contracts entered into by the United States for: (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair or maintenance of real property; or (4) the disposal of personal property. 41 U.S.C. § 602(a)(1)-(4) (2006). Furthermore, the Court’s CDA jurisdiction over services extends only to the procurement of services by the Government and not the provision of such services. Fl. Power & Light Co. v. United States, 307 F.3d 1364, 1371 (Fed.Cir.2002) (emphasis added). The" }, { "docid": "15311451", "title": "", "text": "building. Id. at 88. The court noted that the contract’s disputes clause made disputes concerning the promised repair work subject to the CDA. Id. Relying in part on our holding in Forman v. United States, 767 F.2d 875, 879 (Fed.Cir.1985) (board has jurisdiction over dual-purpose contract for the construction and lease of real property), the court held that the board had jurisdiction over Bonneville’s appeal. See 41 U.S.C. § 602(a)(3) (CDA applies to contracts for the “procurement of construction, alteration, repair or maintenance of real property”). Bonneville, 30 Fed.Cl. at 87-89. The court therefore concluded that, because the board had jurisdiction over Bonneville’s appeal, the Election Doctrine required dismissal of the case without prejudice for lack of subject matter jurisdiction. Id. at 89-90. Bonneville now appeals. DISCUSSION Whether the Court of Federal Claims had jurisdiction in a CDA ease is a question of law, which we review de novo. Sharman Co. v. United States, 2 F.3d 1564, 1568 (Fed.Cir.1993); Transamerica Ins. Corp. v. United States, 973 F.2d 1572, 1576 (Fed.Cir.1992). Section 8(d) of the CDA provides that the boards of contract appeals “shall have jurisdiction to decide any appeal from a decision of a contracting officer ... relative to a contract.” 41 U.S.C. § 607(d) (Supp. Y 1993). Section 3 of the CDA limits the applicability of the statute, and thus the board’s jurisdiction, to certain types of contracts: § 602 Applicability of law (a) Executive agency contracts Unless otherwise specifically provided herein, this chapter applies to any express or implied contract ... entered into by an executive agency for— (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair or maintenance of real property; or, (4) the disposal of personal property. 41 U.S.C. § 602(a) (Supp. V 1993) (emphasis added). Bonneville argues that the board lacked subject matter jurisdiction over its appeal and thus that Bonneville’s filing of a notice of appeal with the board was not a binding election. Specifically, Bonneville points out that § 602(a)(1) excludes contracts for the “procurement of ... real property”" }, { "docid": "11814302", "title": "", "text": "7101-09. In order to bring a CDA claim in this Court, a plaintiff must meet two prerequisites. First, a plaintiff must have submitted a proper claim to the relevant contracting officer, which must be properly certified if the amount requested exceeds $100,000. 41 U.S.C. § 7103(a)-(b); Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575-76 (Fed.Cir.1995); RSH Constructors, Inc. v. United States, 14 Cl.Ct. 655, 657 (1988). Second, a plaintiff must have obtained either an actual or a deemed final decision on that claim. 41 U.S.C. §§ 7103-04; Orbas & Assocs. v. United States, 26 Cl.Ct. 647, 649 (1992) (“Absent an actual or ‘deemed’ final decision, this [C]ourt cannot exercise jurisdiction over the controversy.”); Claude E. Atkins Enters., Inc. v. United States, 27 Fed.Cl. 142, 143 (1992). In addition, the United States Court of Appeals for the Federal Circuit has long recognized that the CDA does not apply to every government contract. G.E. Boggs & Assocs., Inc. v. Roskens, 969 F.2d 1023, 1026 (Fed.Cir.1992); see also Anchor Tank Lines, LLC v. United States, 127 Fed.Cl. 484, 495 (2016). Rather, the CDA applies only to contracts made by an executive agency for: (1) the procurement of property, other • than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair, or maintenance of real property; or (4) the disposal of personal property. 41 U.S.C. § 7102(a). And so, only a “conventional contract for the direct procurement of property, services and construction, to be used directly by the [g]ovemment” is covered by the CDA. Delta S.S. Lines v. United States, 3 Cl.Ct. 559, 569 (1983); see also Lublin Corp. v. United States, 84 Fed.Cl. 678, 683 (2008) (“[C]ourts have refused to stretch the language of the CDA to cover contracts that do not arise from a typical ‘acquisitive’ relationship and the expenditure of appropriated funds or some other exchange of recognized value. ...”). To determine whether a contract falls within the purview of the CDA, the Court looks first to the definition of the term procurement and then the Court examines the purpose and legislative history of" }, { "docid": "6507269", "title": "", "text": "intended to discourage the submission of unwarranted contractor claims and to encourage settlements. Paul E. Lehman, Inc. v. United States, 230 Ct.Cl. 11, 14, 673 F.2d 352, 354 (1982). B. CDA Applicability Section 3 of the CDA provides as follow (in part): § 602 Applicability of law (a) Executive agency contracts Unless otherwise specifically provided herein, this chapter applies to any express or implied contract ... entered into by an executive agency for— (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair or maintenance of real property; or, (4) the disposal of personal property. 41 U.S.C. § 602(a). It has been ruled that the CDA is not applicable to all government contracts. G.E. Boggs & Associates, Inc. v. Roskens, 969 F.2d 1023, 1026 (Fed.Cir.1992). Contracts not awarded by an executive agency, are not covered by the CDA. Tatelbaum v. United States, 749 F.2d 729, 730 (Fed.Cir.1984). The Department of the Interior is an executive agency. 43 U.S.C. § 1451. Contract No. 0-07-10-W0242 was executed after the effective date of the CDA so that a coverage election by OTID is not required. See Joseph Morton Co., Inc. v. United States, 757 F.2d 1273, 1279 (Fed.Cir.1985). Both parties assert that Contract No. 0-07-10-W0242 does not provide for the procurement of property, other than real property in being. A “procurement” is an acquisition by purchase, lease, or barter, of property or services for the direct benefit or use of the federal government. Bonneville Associates v. United States, 43 F.3d 649, 653 (Fed.Cir.1994). An examination of Contract No. 0-07-10-W0242 does not disclose any term which comprises a procurement of property by the United States. The parties also assert that Contract No. 0-07-10-W0242 does not involve the procurement of services. In its statement, filed February 15, 1995, OTID states that, “[C]ertainly, the Bureau is not purchasing any service from OTID,____” However, as quoted above, the Acts of October 9, 1962 and September 28, 1976, authorized the Secretary of the Interior to construct, operate and maintain the project unit in question to" }, { "docid": "6507268", "title": "", "text": "14(a) of the CDA, 92 Stat. 2389, amended 28 U.S.C. § 1346(a) to rescind district court jurisdiction over contract claims subject to the CDA. With the enactment of the CDA, the administrative disputes resolution process was no longer premised on the existence of a “disputes clause” in the contract, but the Act still permitted an agency to include a contract clause providing that, pending a final decision on an appeal, action, or final settlement, a contractor was required to proceed with the performance of the contract in accordance with the Contracting Officer’s decision. 41 U.S.C. § 605(b). Accordingly, it can be seen that one constant which has been retained throughout the various changes which have occurred over the years in the disputes resolution process for government contracts is the submission of a contractor’s claim to the Contracting Officer prior to the initiation of litigation. For contracts covered by the CDA, Congress placed additional significance on the submission of a claim to the Contracting Officer by adding a certification requirement. 41 U.S.C. § 605(c)(1). This was intended to discourage the submission of unwarranted contractor claims and to encourage settlements. Paul E. Lehman, Inc. v. United States, 230 Ct.Cl. 11, 14, 673 F.2d 352, 354 (1982). B. CDA Applicability Section 3 of the CDA provides as follow (in part): § 602 Applicability of law (a) Executive agency contracts Unless otherwise specifically provided herein, this chapter applies to any express or implied contract ... entered into by an executive agency for— (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair or maintenance of real property; or, (4) the disposal of personal property. 41 U.S.C. § 602(a). It has been ruled that the CDA is not applicable to all government contracts. G.E. Boggs & Associates, Inc. v. Roskens, 969 F.2d 1023, 1026 (Fed.Cir.1992). Contracts not awarded by an executive agency, are not covered by the CDA. Tatelbaum v. United States, 749 F.2d 729, 730 (Fed.Cir.1984). The Department of the Interior is an executive agency. 43 U.S.C. § 1451. Contract No." }, { "docid": "19301912", "title": "", "text": "claim to a contracting officer until March 29, 2008. However, Plaintiff argues that Count 1, which made up the entirety of Plaintiffs original complaint, falls under the Tucker Act and not the CDA. The Court agrees with Plaintiff that count 1 falls under the jurisdiction of the Tucker Act and not the CDA. The Tucker Act grants the Court of Federal Claims broad jurisdiction over “express or implied contracts) with the United States.” 28 U.S.C. § 1491(a)(1). By contrast, the CDA only applies to express or implied contracts entered into by the United States for: (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair or maintenance of real property; or (4) the disposal of personal property. 41 U.S.C. § 602(a)(1)-(4) (2006). Furthermore, the Court’s CDA jurisdiction over services extends only to the procurement of services by the Government and not the provision of such services. Fl. Power & Light Co. v. United States, 307 F.3d 1364, 1371 (Fed.Cir.2002) (emphasis added). The meaning of “procurement” under the CDA is “the acquisition by purchase, lease or barter, of property or services for the direct benefit or use of the Federal Government_” New Era Constr. v. United States, 890 F.2d 1152, 1157 (Fed.Cir.1989), rehearing denied, (1990) (citation omitted) (emphasis in original). Intangible forms of consideration, such as bailment contracts, contracts for uranium enrichment services, and guarantees of government money orders, do not qualify as “procurements” under the CDA. See Telenor Satellite Servs., Inc. v. United States, 71 Fed.Cl. 114, 119 (2006) (ruling that an alleged bailment contract for the possession of electronic transmission equipment did not involve a contract for the procurement of goods or services); Fl. Power & Light Co., 307 F.3d at 1373-74 (holding that the Court of Federal Claims did not have CDA jurisdiction over a contract in which utility companies delivered unenriched uranium to the Government, the Government enriched the material, and the Government delivered the enriched uranium to another utility); Arbitraje Casa de Cambio, S.A. de CV. v. United States, 79 Fed.Cl. 235, 240" }, { "docid": "1938332", "title": "", "text": "expiration of the lease. The government’s position is that by the plain language of Article 3, the lease has simply expired, it had no obligation to renew the lease, and it is entitled to eject its former lessee. Indeed, the government has clearly and unequivocally taken a position inconsistent with a continuing relationship with Triple A. Because the dispute is not of the sort contemplated under the Disputes Clause, the government was not required to exhaust administrative remedies prior to bringing this action. Therefore, the Disputes Clause did not deprive the district court of jurisdiction. B. Does the Contracts Dispute Act Deprive the District Court of Jurisdiction? The CDA requires administrative review of government claims against a contractor in four specified circumstances. 41 U.S.C. § 602, 605. The district court had jurisdiction to determine whether one of those circumstances applies here, and correctly determined none does. The CDA applies to contracts for: (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair or maintenance of real property; or, (4) the disposal of personal property. 41 U.S.C. § 602(a). This court has already held that Triple A’s lease with the Navy is not a contract under (2), for the procurement of services. City & County of San Francisco v. United States, 615 F.2d 498, 503-04 (9th Cir.1980). Rather, Triple A first argues here that the lease is a contract for the disposal of personal property, and thus falls within section 602(a)(4). Triple A contends, and the government concedes, that a leasehold interest in real property can be considered an item of personal property. However, Triple A’s argument that the lease granting the right to occupy real property for a specified period of time is a disposal of personal property distorts any difference between personal and real property. The contract involved here (the lease) is not for the “disposal of” a lease but for the “disposal of” the real property. Triple A’s second argument, that the lease should be construed as one for the disposal of personal property because" }, { "docid": "5739128", "title": "", "text": "are covered by the CDA. This involves statutory interpretation, which is a question of law on which this court must exercise its independent judgment. Minnesota Power And Light Co. v. United States, 782 F.2d 167, 169 (Fed Cir.1986). Upon consideration of the language and purpose of the CDA, its legislative history and associated regulations, we conclude that the Claims Court erred in holding the CDA applicable to the pleaded contracts. In any situation involving the interpretation of a statute, “[a]nalysis must begin with the language of the statute.” United States v. John C. Grimberg Co., 702 F.2d 1362, 1365 (Fed.Cir.1983) (citing Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979)). 41 U.S.C. § 602(a) provides (a) Executive agency contracts Unless otherwise specifically provided herein, this chapter applies to any express or implied contract ... entered into by an executive agency for— (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair or maintenance of real property; or, (4) the disposal of personal property. Although this court has referred to the language of § 602(a) as unambiguous, Coastal Corp. v. United States, 713 F.2d 728, 730 (Fed.Cir.1983), it has also stated that even where a statute is clear on a purely linguistic level, interpretation may be necessary if that interpretation does not do justice to the realities of the situation. As stated by the Supreme Court in Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892), it is a “familiar rule that a thing may be within the letter of the statute, but not within its spirit nor within the intention of its makers.” Texas State Comm’n for the Blind v. United States, 796 F.2d 400, 406 (Fed.Cir.1986). To determine whether the applicability of the CDA to the pleaded contracts is within the intention of Congress, we must look to the purpose of the Act and its legislative history. The CDA is an implementation of recommendations made by the" }, { "docid": "21228788", "title": "", "text": "(3d Cir.1972))). The facts of this case are distinguishable. With respect to its CDA claim, plaintiff seeks review of a final decision of the NRCS that can be appealed to the Court of Federal Claims — not a decision of the National Appeals Division — and that is not within the scope of 7 U.S.C. § 6999. Count I arises as an implied-in-fact warranty based on the NRCS Agreement, not as one based on the contract provisions executed under the Department of Agriculture Reorganization Act of 1994 and not subject to the requirements of 7 U.S.C. § 6999. 3. Professional negligence Plaintiff alleges that the NRCS “is liable for professional negligence in its design of the facility,” a claim sounding in tort. Am. Compl. H36. The Tucker Act, 28 U.S.C. § 1491(a)(1), specifically excludes tort claims from the jurisdiction of the Court of Federal Claims. Id. (“The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim ... for liquidated or unliquidated damages in cases not sounding in tort.” (emphasis added)); see Brown v. United States, 105 F.3d 621, 623 (Fed.Cir.1997) (stating that Court of Federal Claims “lacks jurisdiction over tort actions against the United States”). Therefore, plaintiffs claim for professional negligence is subject to dismissal for lack of subject matter jurisdiction. 4. Procurement contracts within the scope of the Contract Disputes Act Count II is based on the CDA, which. provides: [I]n lieu of appealing the decision of the contracting officer under section 605 of this title to an agency board, a contractor may bring an action directly on the claim in the United States Court of Federal Claims, notwithstanding any contract provision, regulation, or rule of law to the contrary. 41 U.S.C. § 609(a)(1). Section 602 of Title 41 of the United States Code defines the scope of the CDA, which includes “any express or implied contract ... entered into by an executive agency for — (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair or maintenance of real" }, { "docid": "22104406", "title": "", "text": "for summary judgment, the court, upon finding genuine issues as to material facts, must deny the motion; whereas on a Rule 12(b)(1) challenge to subject matter jurisdiction, the court is empowered to resolve factual disputes. 798 F.2d at 915 (footnotes and citations omitted.) See also, Ohio National Life Insur ance Co. v. United States, 922 F.2d 320, 324-325 (6th Cir.1990). In the instant case, Defendants’ Rule 12(b)(1) motions did not mount a mere “facial” challenge to the Plaintiffs complaint allegations of jurisdiction. Rather, the district court was called upon to weigh the evidence concerning jurisdiction presented by the parties and decide the jurisdictional facts. Where a trial court’s ruling on jurisdiction is based in part on the resolution of factual disputes, a reviewing court must accept the district court’s factual findings unless they are clearly erroneous. Ohio National Life Ins. Co. v. United States, supra, 922 F.2d at 326; Osborn v. United States, supra, 918 F.2d at 732 (if the trial court relied upon its own determination of disputed factual issues, the appellate court must then review those findings under the “clearly erroneous” standard); Holt v. United States, supra, 46 F.3d at 1003. However, review of the district court’s application of the law to the facts is de novo. Ynclan v. Department of Air Force, 943 F.2d 1388, 1390 (5th Cir.1991); Holt v. United States, supra. B. PLAINTIFF’S CLAIMS AGAINST THE WESTINGHOUSE DEFENDANTS ARE PREEMPTED UNDER THE CONTRACT DISPUTES ACT The Contract Disputes Act, 41 U.S.C. § 601 et seq. (the “CDA”), statutorily provides explicit dispute resolution procedures for all claims “relating to” any express or implied contract entered into by an executive agency for— (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair or maintenance of real property; or (4)the disposal of personal property. 41 U.S.C. §§ 602, 605. The procedures established for contractors’ claims are set forth in §§ 605-609 of the Act. Pursuant to the statutory scheme, a contractor’s claims against the government which relate to a contract must be submitted to a" }, { "docid": "18243176", "title": "", "text": "the ability to provide consistency in applying the laws related to government contracts”). The CDA applies to any express or implied contract entered into by an executive agency for: “(1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair or maintenance of real property; or, (4) the disposal of personal property.” 41 U.S.C. § 602(a). “It is well-established therefore that disguised contract actions may not escape the CDA.” J&E Salvage Co., 55 F.3d at 988 (noting that the source of the rights the government sought to vindicate were based in contract, even though the government styled its action as one sounding in tort); Trevino v. Gen. Dynamics Corp., 865 F.2d 1474, 1489 (5th Cir.1989) (finding claim subject to CDA, as essence of claim was to obtain money from the government). The CDA was intended “to streamline the settlement of controversies over federal government contracts,” and it “generally affords private contractors a two-step review process.” Bethlehem Steel Corp. v. Avondale Shipyards, Inc., 951 F.2d 92, 93 (5th Cir.1992). First, there must be a final decision by a CO on a claim before that claim can be submitted to a federal court. Trevino, 865 F.2d at 1489 (“The decision, or failure to decide, by a contracting officer is an absolute jurisdictional prerequisite to filing a suit under the Contract Disputes Act.”); see also, e.g., J&E Salvage Co., 55 F.3d at 987; Menominee Indian Tribe, 614 F.3d at 521; Sharman Co. v. United States, 2 F.3d 1564, 1566 (Fed.Cir.1993), overruled on other grounds by Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed.Cir.1995) (en banc) Transamerica Ins. Corp. ex rel. Stroup Sheet Metal Works v. United States, 28 Fed.Cl. 418, 422 (1993). After a CO has issued a decision, a party may appeal that decision to the relevant board of contract appeals within 90 days, or file suit in the CFC within 12 months. Menominee Indian Tribe, 614 F.3d at 521. A claim has been defined as “the assertion as a matter of right to a sum certain as presently due" }, { "docid": "2679586", "title": "", "text": "§ 409(a). Although we find, for the reasons stated below, that it is, we must first explain why the CDA continues to apply to the USPS following the 2006 amendments to the statute. i. Under the heading, “Applicability of [C]hapter,” the CDA states (a) EXECUTIVE AGENCY CONTRACTS. — Unless otherwise specifically provided in this chapter, this chapter applies to any express or implied contract (including those of the nonappropriated fund activities described in sections 1346 and 1491 of title 28) made by an executive agency for— (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair, or maintenance of real property; or (4) the disposal of personal property. Pub.L. No. 111-350, § 3, 124 Stat. 3677, 3817 (2011) (to be codified at 41 U.S.C. § 7102(a)) (emphasis added). Until 2006, and since the Act’s enactment in 1978, 41 U.S.C. § 601, the former definitional section of the CDA, defined the term “executive agency” as an executive department as defined in section 101 of Title 5, an independent establishment as defined by section 104 of Title 5 (except that it shall not include the Government Accountability Office), a military department as defined by section 102 of Title 5, and a wholly owned Government corporation as defined by section 9101(3) of Title 31, the United States Postal Service, and the Postal Rate Commission 41 U.S.C. § 601(2) (2004), amended by 41 U.S.C. § 601(2) (2006) (emphasis added). In 2006, however, Congress amended the CDA to strike out the phrase, “the United States Postal Service, and the Postal Rate Commission.” See 41 U.S.C. § 601(2) (2006), amended by Pub.L. No. 111-350, § 3, 124 Stat. 3677, 3817 (2011) (to be codified at 41 U.S.C. § 7101(8)). The recently recodified statute retains the 2006 amendment, defining an “executive agency” as (A) an executive department as defined in section 101 of title 5; (B) a military department as defined in section 102 of title 5; (C) an independent establishment as defined in section 104 of title 5, except that the term does" }, { "docid": "21228789", "title": "", "text": "added)); see Brown v. United States, 105 F.3d 621, 623 (Fed.Cir.1997) (stating that Court of Federal Claims “lacks jurisdiction over tort actions against the United States”). Therefore, plaintiffs claim for professional negligence is subject to dismissal for lack of subject matter jurisdiction. 4. Procurement contracts within the scope of the Contract Disputes Act Count II is based on the CDA, which. provides: [I]n lieu of appealing the decision of the contracting officer under section 605 of this title to an agency board, a contractor may bring an action directly on the claim in the United States Court of Federal Claims, notwithstanding any contract provision, regulation, or rule of law to the contrary. 41 U.S.C. § 609(a)(1). Section 602 of Title 41 of the United States Code defines the scope of the CDA, which includes “any express or implied contract ... entered into by an executive agency for — (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair or maintenance of real property; or, (4) the disposal of personal property.” Id. Plaintiff argues that the NRCS Agreement, as a contract for the procurement of services or “construction, alteration, repair or maintenance of real property”, is governed by the CDA and therefore is subject to the jurisdiction of the Court of Federal Claims. . 41 U.S.C. § 602(a). The NRCS Agreement provides: “Each of the ... participants hereby agrees to participate in this NRCS cost-share program ...; hereby agrees (1) to carry out on the land unit ... land adjustments ... according to the time schedule ... and in accordance with the specifications and other special program criteria obtained from the local field office of the [NRCS]....” NRCS Agreement, Part II. The facility was required to be “started within one year (12 months) of the signing of the contract,” and “[a]ll required conservation treatment must be installed at least 2 years before expiration of the contract,” and “[a]ll contract items must be accomplished prior to the expiration date of the contract.” Id., Special Provisions 2. In return for" }, { "docid": "7267497", "title": "", "text": "that regardless of whether WRS properly exhausted its administrative remedies under the CDA, this court lacks subject matter jurisdiction because 28 U.S.C.A. § 1346(a)(2) (West 1993) confers exclusive jurisdiction on the Court of Federal Claims for contract claims against the United States for damages in excess of $10,000.00. Conversely, WRS contends that jurisdiction is proper in this court under either the supplemental jurisdiction provision of 28 U.S.C.A. § 1367(a) (West 1993) or under the pendency of claims provision of 28 U.S.C.A. § 1500 (West Supp.1993). The court first examines the exhaustion requirement before turning to the issue of exclusivity of jurisdiction in the Court of Federal Claims. 1. Exhaustion of Administrative Remedies The CDA provides, in pertinent part, that this chapter applies to any express or implied contract ... entered into by an executive agency for— (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repaii- or maintenance of real property; or (4) the disposal of personal property. 41 U.S.C.A. § 602(a) (West 1987). Thus, by its express terms, the CDA applies to the contract between the EPA and WRS because it is a contract for clean-up services. The purpose of enacting the CDA was to create a comprehensive statutory scheme of administrative and legal remedies so that contract claims against the Government could be uniformly resolved. See Coffey v. United States, 626 F.Supp. 1246, 1249 (D.Kan.1986). The CDA provides an express procedure for administrative resolution of claims. Subsection 605(a) provides that “[a]ll claims ... against the government ... shall be in writing and shall be submitted to ■the contracting officer for a decision,” and § 606 provides that a contractor may appeal the decision of the contracting officer “to an agency board of contract appeals.” Section 609 provides that “in lieu of appealing the decision of the contracting officer ... to an agency board, a contractor may bring an action directly on the claim in the United States Court of Federal Claims.... ” An aggrieved contractor must first submit his claim to the contracting officer and" } ]

[ { "docid": "7970472", "title": "", "text": "fees to be awarded on appeal. . Denying deduction: Abron v. Black & Decker Mfg. Co., 439 F.Supp. 1095 (D.Md.1977); Inda v. United Airlines, Inc., 405 F.Supp. 426 (N.D. Cal. 1975), modified on other grounds, 565 F.2d 554 (9th Cir. 1977), cert. denied, 435 U.S. 1007, 98 S.Ct. 1877, 56 L.Ed.2d 388 (1978); Tidwell v. American Oil Co., 332 F.Supp. 424 (D.Utah 1971). Allowing deduction: Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2d Cir. 1980); EEOC v. Enterprise Association Steamfitters, 542 F.2d 579 (2d Cir. 1976), cert. denied, 430 U.S. 911, 97 S.Ct. 1186, 51 L.Ed.2d 588; Satty v. Nashville Gas Co., 522 F.2d 850 (6th Cir. 1975); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969); Heelan v. Johns-Manville Corp., 451 F.Supp. 1382 (D.Colo.1978); Bradford v. Sloan Paper Co., 383 F.Supp. 1157 (N.D. Ala. 1974); Diaz v. Pan American World Airways, Inc., 346 F.Supp. 1301, amended, 348 F.Supp. 1083 (S.D.Fla.1972). In Naton v. Bank of California, 649 F.2d 691 (9th Cir. 1981), a case involving a similar question but arising under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634, we stated: [w]e need not decide whether the collateral source rule applies in this case, because we hold that even if the district court was authorized to treat the unemployment compensation as a collateral benefit, it retained the discretion under the ADEA to deduct the compensation from the backpay award. Id. at 700. While Naton does not involve a claim under Title VII, this court applies the same basic standards to both Title VII and ADEA claims. See Douglas v. Anderson, 656 F.2d 528, 531 (9th Cir. 1981); Kelly v. American Standard, 640 F.2d 974, 984 (9th Cir. 1981). However, even if we apply the reasoning of Naton to the instant case, it is of no avail to the appellant because it leaves open the precise question we face today, whether unemployment compensation is a collateral source. . In Gullet Gin, as here, the plaintiff received unemployment pay from a state fund supported by a tax on employers. We, therefore, have no occasion to decide today" } ]

[ { "docid": "356642", "title": "", "text": "award should be further reduced by the amounts received by McDowell as unemployment compensation benefits and pension plan benefits after his discharge by Avtex. The parties stipulated that the pension payments were derived from a pension plan to which Avtex had made payments without contributions from McDowell. Moreover, the parties stipulated that Avtex would pay into this pension plan so as to return McDowell’s pension benefits to the level they would have reached but for the interruption of his employment due to his unlawful discharge. McDowell has been reinstated with his entitlement under the pension plan fully restored. In addition to back pay, McDowell was awarded by the trial court an equal amount in the form of “liquidated damages.” Such damages are proper if Avtex willfully violated the ADEA. Avtex argued, however, that the trial court erred in finding willfulness and that the evidence was insufficient to support a finding of willfulness. II. Mitigation of Damages A. Unemployment Compensation Benefits We will address first McDowell’s challenge to the trial court's deduction of unemployment compensation benefits from his back pay award. Without benefit of this court’s decision in Craig v. Y & Y Snacks, Inc., (“Craig”) 721 F.2d 77 (3d Cir.1983), the trial court reasoned that the propriety of deducting unemployment compensation benefits from McDowell’s back pay award under ADEA is entrusted to the discretion of the trial judge. Accordingly, the trial court exercised its discretion and found the deduction of unemployment benefits to be appropriate. After the trial court decided this case, this court confronted an identical issue in Craig, id., brought under Title VII. In Craig, this court aligned itself with the Fourth, Ninth and Eleventh Circuits and adopted the rule that unemployment benefits may not be deducted from a Title VII back pay award. Id. at 85; see Brown v. A.J. Gerrard Manufacturing Co., 715 F.2d 1549, 1550 (11th Cir.1983) (in banc) (per curiam); Kauffman v. Sidereal Corp., 695 F.2d 343, 346-47 (9th Cir.1982) (per curiam); EEOC v. Ford Motor Co., 645 F.2d 183, 195-96 (4th Cir.1981), rev’d on other grounds, 458 U.S. 219, 102 S.Ct. 3057, 73" }, { "docid": "17780918", "title": "", "text": "defendants for firing Daniel was pretextual. Sorensen v. City of Aurora, 984 F.2d 349, 353 (10th Cir.1993) (once the defendant presents evidence of a nondiscriminatory reason for the adverse action, the plaintiff may nevertheless prevail if she shows that the proffered reason was mere pretext for discrimination). We reject the suggestion of counsel made in oral argument that St. Mary's Honor Ctr. v. Hicks, — U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) dictates a reversal of the instant case. . There is no suggestion that Loveridge offered to reinstate Daniel. Rather, Dennis Loveridge indicated quite clearly that he would never rehire Daniel because \"there would never be a spirit or trust.” . We reject the suggestion that the back pay-award to Daniel should be reduced by unemployment compensation she received from the state. We find nothing in the record before us concerning the type or amount of Loveridge, Inc.'s contribution to any unemployment compensation fund. In this general regard, we note that in EEOC v. Sandia Corp., 639 F.2d 600, 624-25 (10th Cir.1980), we rejected the employer’s argument that failure to offset would result in a windfall to the plaintiff. Id. at 625. We recognize that in Sandia, the employer did not contend that he had made any contributions to an unemployment compensation fund. Id. at 626. However, we held that the matter was within the court’s discretion, citing NLRB v. Gullett Gin, Co., 340 U.S. 361, 71 S.Ct. 337, 95 L.Ed. 337 (1951). See EEOC v. Enterprise Ass'n Steamfitters Local No. 638, 542 F.2d 579, 592 (2d Cir.1976) (utilizing the discretionary rule, but holding that it was not an abuse of discretion to deduct unemployment compensation from back pay in a Title VII case), cert. denied, 430 U.S. 911, 97 S.Ct. 1186, 51 L.Ed.2d 588 (1977). Accord, Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 721 (7th Cir.1969). But see Hunter v. Allis-Chalmers Corp. Engine Div., 797 F.2d 1417, 1428-29 (7th Cir.1986) (assuming the applicability of the discretionary rule, and upholding the district court's refusal to deduct from the back pay award unemployment compensation received). See also Rasimas" }, { "docid": "356643", "title": "", "text": "from his back pay award. Without benefit of this court’s decision in Craig v. Y & Y Snacks, Inc., (“Craig”) 721 F.2d 77 (3d Cir.1983), the trial court reasoned that the propriety of deducting unemployment compensation benefits from McDowell’s back pay award under ADEA is entrusted to the discretion of the trial judge. Accordingly, the trial court exercised its discretion and found the deduction of unemployment benefits to be appropriate. After the trial court decided this case, this court confronted an identical issue in Craig, id., brought under Title VII. In Craig, this court aligned itself with the Fourth, Ninth and Eleventh Circuits and adopted the rule that unemployment benefits may not be deducted from a Title VII back pay award. Id. at 85; see Brown v. A.J. Gerrard Manufacturing Co., 715 F.2d 1549, 1550 (11th Cir.1983) (in banc) (per curiam); Kauffman v. Sidereal Corp., 695 F.2d 343, 346-47 (9th Cir.1982) (per curiam); EEOC v. Ford Motor Co., 645 F.2d 183, 195-96 (4th Cir.1981), rev’d on other grounds, 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982), adhered to original position on remand, 688 F.2d 951, 952 (4th Cir.1982) (per curiam). Although Craig concerned a Title VII case, we can find no persuasive reason for reaching a different result simply because this case involves an ADEA violation rather than a Title VII violation. There is no legislative history or case law speaking to this precise issue. Instead, similarities between Title VII and the ADEA and this court’s reasoning in Craig require a holding in this case that unemployment compensation benefits may not be deducted from an ADEA award. As the Supreme Court noted in Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978), [tjhere are important similarities between the two statutes, to be sure, both in their aims — the elimination of discrimination from the workplace — and in their substantive prohibitions. In fact, the prohibitions of the ADEA were derived in haec verba from Title VII. Thus, while fashioning a rule to further the ends of Title VII, the majority stated in" }, { "docid": "15659441", "title": "", "text": "or persons discriminated against shall operate to reduce the back pay otherwise allowable.” This provision prevents employment discrimination victims from recovering twice for the same injury. The SSA argues that Arneson’s disability benefits constitute interim earnings. Because the National Labor Relations Act provides the model for the Title VII back pay remedy, see Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 82 (3d Cir.1983), we find the Court’s decision in NLRB v. Gullett Gin Co., 340 U.S. 361, 71 S.Ct. 337, 95 L.Ed. 337 (1951) particularly relevant to this issue. The common law collateral source rule holds that the defendant’s liability shall not be reduced merely because the plaintiffs net damages are reduced by payments received from others. See Gullett Gin, 340 U.S. at 364, 71 S.Ct. at 339-40. In Gullett Gin, the Court applied the collateral source rule to uphold the National Labor Relations Board’s refusál to deduct unemployment' benefits from an employee’s NLRA back pay award for unlawful discharge. Id. The Court held that the unemployment benefits at issue were collateral because they were not direct benefits from the employer and they were made.“to carry out a policy of social betterment for .the benefit of the entire state.” Id. We have previously' áddressed this issue under the Age' Discrimination in Employment Act of 1967, 29 U.S.C. § 621. See, e.g., Smith v. World Ins. Co., 38 F.3d 1456, 1465 (8th Cir.1994). In Smith, we refused to reduce an ADEA back pay award by pension benefits received on account of the employee’s wrongful discharge and remanded the case to determine whether “the award of backpay includes amounts designed to put [the employee’s] pension account in the same position as though he were never discharged.” Id. at 1466. We affirm the district court’s refusal to deduct Arneson’s disability benefits from his back pay award becaúse these benefits were from a collateral source and should not be considered interim earnings. Cf. Eichel v. New York Central R.R. Co., 375 U.S. 253, 254, 84 S.Ct. 316, 316-17, 11 L.Ed.2d 307 (1963) (stating “[Respondent does not dispute that it would be" }, { "docid": "23636008", "title": "", "text": "that, in fact, the Board does deduct “earnings of employees from other employment during the back pay period and also sums which they failed without excuse to earn.” Id. at 363, 71 S.Ct. at 339 (citations omitted). Therefore, in practice, under the NLRA, and by statute under Title VII, interim earnings must be deducted. Given the parity between the back pay remedies in both statutes suggested by the Supreme Court, it follows that the NLRB’s practice not to deduct unemployment compensation from the back pay award, notwithstanding its deduction of interim earnings, counsels a similar construction of Title VII. Brown v. A.J. Gerrard Manufacturing Co., 715 F.2d at 1550-51; see also EEOC v. Ford Motor Co., 645 F.2d at 195-96. (3) Unemployment compensation most clearly resembles a collateral benefit which is ordinarily not deducted from a plaintiff’s recovery. Under the collateral benefit rule, payment which a plaintiff receives for his or her loss from another source is not credited against the defendant’s liability for all damages resulting from its wrongful or negligent act. Restatement (Second) of Torts § 920A(2) (1979); 3 L. Frumer, R. Benoit & M. Friedman, Personal Injury § 4.03 (1965); see also Smith v. United States, 587 F.2d 1013, 1015 (3d Cir.1978); Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 179-180 & n. 3 (3d Cir.1977). In addition to unemployment compensation, payments under Social Security or welfare programs and similar benefits have been treated as collateral. See, e.g., Titchnell v. United States, 681 F.2d 165 (3d Cir.1982) (Medicare); Smith v. United States, supra (Social Security); Varlack v. SWC Caribbean, Inc., supra (government-reimbursed medical and rehabilitative expenses); see also 3 L. Frumer, R. Benoit & M. Friedman, supra, at § 4.03[3]; Restatement (Second) of Torts, supra, at § 920A comment c(3). The rationale for a rule that at first glance may appear to provide an inequitable double recovery is that a wrongdoer should not get the benefit of payments that come to the plaintiff from a source collateral to the defendant. See Kauffman, 695 F.2d at 346-47 (quoting Gullett Gin, 340 U.S. at 364, 71 S.Ct. at 339-340);" }, { "docid": "19212363", "title": "", "text": "Motor Co., 645 F.2d 183, 196 (4th Cir.1981), rev’d & remanded on other grounds, 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982), original position adhered to on remand, 688 F.2d 951, 952 (4th Cir.1982) (per curiam); Brown v. A.J. Gerrard Mfg. Co., 715 F.2d 1549, 1550-51 (11th Cir.1983) (en banc) (per curiam). Three circuits have adopted a minority position that deducting unemployment benefits lies within the discretion of the trial court. See Cooper v. Asplundh Tree Expert Co., 836 F.2d 1644, 1665 (10th Cir.1988); Hunter, 797 F.2d at 1429 (Posner, J., acknowledging discretion as Seventh Circuit rule but stating that it “may be unduly favorable to defendants”); Marshall v. Goodyear Tire & Rubber Co., 554 F.2d 730, 736 (5th Cir.1977). The Second Circuit has in the past affirmed a deduction of unemployment benefits as discretionary, see E.E.O.C. v. Enterprise Assoc. Steamfitters Local 638 of U.A., 542 F.2d 579, 592 (2d Cir.1976), cert. denied, 430 U.S. 911, 97 S.Ct. 1186, 51 L.Ed.2d 588 (1977), but more recently indicated that the circuit’s rule remains unsettled, see Promisel v. First Am. Artificial Flowers, 943 F.2d 251, 258 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 939, 117 L.Ed.2d 110 (1992). Because we believe the majority rule is the more sound position, we hold that unemployment benefits should not be deducted from awards of backpay under the ADEA. Unemployment benefits are collateral source payments that cannot be termed even “partial consideration” for employment. Gullett Gin, 340 U.S. at 364, 71 S.Ct. at 339. We believe that no employer should benefit because of the state’s beneficence in providing for one of the employer’s illegally discharged employees. If Gaworski’s award is to be reduced, it should be the state that seeks to recoup the benefits it paid out. Accordingly, we reverse this aspect of the district court’s decision and find that Gaworski’s backpay award should be increased by $12,-101.00. III. CONCLUSION Based on the foregoing analysis, the judgment on the jury verdict finding the defendants liable for violating the ADEA is affirmed. The backpay award of $265,892.27 is reduced by $18,061.80 to reflect" }, { "docid": "17780919", "title": "", "text": "we rejected the employer’s argument that failure to offset would result in a windfall to the plaintiff. Id. at 625. We recognize that in Sandia, the employer did not contend that he had made any contributions to an unemployment compensation fund. Id. at 626. However, we held that the matter was within the court’s discretion, citing NLRB v. Gullett Gin, Co., 340 U.S. 361, 71 S.Ct. 337, 95 L.Ed. 337 (1951). See EEOC v. Enterprise Ass'n Steamfitters Local No. 638, 542 F.2d 579, 592 (2d Cir.1976) (utilizing the discretionary rule, but holding that it was not an abuse of discretion to deduct unemployment compensation from back pay in a Title VII case), cert. denied, 430 U.S. 911, 97 S.Ct. 1186, 51 L.Ed.2d 588 (1977). Accord, Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 721 (7th Cir.1969). But see Hunter v. Allis-Chalmers Corp. Engine Div., 797 F.2d 1417, 1428-29 (7th Cir.1986) (assuming the applicability of the discretionary rule, and upholding the district court's refusal to deduct from the back pay award unemployment compensation received). See also Rasimas v. Mich. Dept. of Mental Health, 714 F.2d 614, 627-28 and n. 13 (6th Cir.1983) (holding that, in a Title VII case, unemployment compensation is a collateral source and should not offset a successful plaintiff's back pay, even where the employer makes a contribution to the unemployment compensation fund in the form of taxes), cert. denied, 466 U.S. 950, 104 S.Ct. 2151, 80 L.Ed.2d 537 (1984). Accord, Brown v. A.J. Gerrard Mfg. Co., 715 F.2d 1549, 1550-51 (11th Cir.1983) (en banc); Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 81-85 (3rd Cir.1983)." }, { "docid": "2715834", "title": "", "text": "PER CURIAM: The en banc court took this case for reconsideration of whether the deduction of unemployment compensation benefits from the amount of a Title VII back pay award should be left to the discretion of the district court. In Brown v. A.J. Gerrard Manufacturing Co., 695 F.2d 1290 (11th Cir. 1983), a panel of this Court, bound by the Fifth Circuit’s decision in Merriweather v. Hercules, Inc., 631 F.2d 1161 (5th Cir.1980), concluded that such a deduction is within the trial court’s discretion. We now hold as a matter of law that unemployment compensation benefits received from a state fund, even if supported by a tax on employers, may not be deducted from a Title VII back pay award, and overrule Merriweather as precedent in this Circuit. The facts of this case are set forth in the panel opinion, Brown v. A.J. Gerrard Manufacturing Co., 695 F.2d 1290, 1291-92 (11th Cir.1983). Briefly, Eddie Charles Brown was awarded a Title VII judgment based on his discharge from A.J. Gerrard Manufacturing Company. The court in awarding back pay deducted the $962 paid to Brown in state unemployment compensation. Brown appeals the deduction of the unemployment compensation benefits. The back pay provision of Title VII was expressly modeled on the back pay provision of the National Labor Relations Act (NLRA). Albemarle Paper Co. v. Moody, 422 U.S. 405, 419, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975). In National Labor Relations Board v. Gullett Gin, 340 U.S. 361, 364, 71 S.Ct. 337, 339, 95 L.Ed. 337 (1950), the Supreme Court held that it was within the discretion of the Labor Relations Board to refuse to deduct unemployment compensation payment from back pay awarded' for a labor violation. Focusing on the holding in Gullett Gin that the Board did not abuse its discretion in that case, our Court has held that whether such payment should be deducted from Title VII awards was a matter within the trial court’s discretion. Merriweather v. Hercules, Inc., 631 F.2d 1161 (5th Cir.1980) (upholding district court’s deduction). See Marshall v. Goodyear Tire & Rubber Co., 554 F.2d 730" }, { "docid": "2715836", "title": "", "text": "(5th Cir.1977) (upholding district court’s denial of deduction under Age Discrimination in Employment Act). Other courts have so held. E.g., Grant v. Bethlehem Steel Corp., 622 F.2d 43, 47 (2d Cir.1980); Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 401 (3d Cir.1976), cert, denied, 429 U.S. 1041, 97 S.Ct. 741, 50 L.Ed.2d 753 (1977); EEOC v. Enterprise Association Steamfitters, 542 F.2d 579, 591-92 (2d Cir.1976), cert, denied, 430 U.S. 911, 97 S.Ct. 1186, 51 L.Ed.2d 588 (1977); Satty v. Nashville Gas Co., 522 F.2d 850, 855 (6th Cir.1975), vacated and remanded on other grounds, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977); Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 721 (7th Cir.1969). Cf. Syvock v. Milwaukee Boiler Manufacturing Co., 665 F.2d 149, 161-62 (7th Cir. 1981) (upholding allowance of deduction in age discrimination suit). Still others have held that unemployment compensation may not be deducted from a Title VII back pay award. Kauffman v. Sidereal Corp., 695 F.2d 343, 346-47 (9th Cir.1982); EEOC v. Ford Motor Co., 645 F.2d 183, 195-96 (4th Cir.1981), rev’d on other grounds, 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982). Although some judges on the Court would adhere to our ruling that the matter should be left to the discretion of the trial court, a majority of the Court decides that a more faithful following of the practice under the labor laws and the decision in Gullett Gin requires that the deduction of unemployment payments from Title VII back pay awards should be consistently disallowed. This conclusion is based on our understanding that at the time Gullett Gin was decided, the NLRB consistently disallowed the deduction, apparently with congressional imprimatur, and did not handle the matter on a case-by-case basis. In the Gullett Gin opinion, the Court stated: Our holding is supported by the fact that when Congress amended the National Labor Relations Act in 1947, the Board had for many years been following the practice of disallowing deduction for collateral benefits such as unemployment compensation. During this period the Board’s practice had been challenged before the courts in only two" }, { "docid": "18352704", "title": "", "text": "the Court adheres to its tentative conclusions expressed at the close of trial. First, the Court rejects Chase’s argument that plaintiff Bonura’s interim earnings should be increased or “grossed up” to reflect the tax benefit to him of certain personal expenses that were paid by ADM Consultants. As the Court remarked at trial, the particulars of defendant’s theory were not adequately proven. Furthermore, as was brought out on cross-examination of defendant’s witness, Anita Forgash, the calculations the witness had prepared in anticipation of trial failed to take into consideration the tax consequences of other events such as Bonura’s premature withdrawal of funds from an individual retirement account. Second, the Court in its discretion declines to subtract from plaintiff Mousseau’s gross back-pay award the amount he received in unemployment insurance benefits following his involuntary departure from Chase. Accord McDowell v. Avtex Fibers, Inc., 740 F.2d 214, 215-17 (3d Cir.1984), vacated and remanded on other grounds, — U.S.-, 105 S.Ct. 1159, 84 L.Ed.2d 312 (1985); EEOC v. Sandia Corp., 639 F.2d 600, 624-26 (10th Cir.1980). Cf. Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 81-85 (3d Cir.1983); Brown v. A.J. Gerrard Mfg. Co., 715 F.2d 1549, 1550 (11th Cir.1983) (en banc) (per curiam); Kauffman v. Sidereal Corp., 695 F.2d 343, 346-47 (9th Cir.1983) (per curiam); EEOC v. Ford Motor Co., 645 F.2d 183, 195-96 (4th Cir.1981), rev’d on other grounds, 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982), adhered to original position on remand, 688 F.2d 951, 952 (4th Cir.1982) (per curiam ) (Title VII cases); but see EEOC v. Enterprise Ass’n Steamfitters Local No. 638, 542 F.2d 579, 591-92 (2d Cir.1976), cert. denied, 430 U.S. 911, 97 S.Ct. 1186, 51 L.Ed.2d 588 (1977) (although weight of common law authority would support refusal to deduct “public assistance” from Title VII back-pay award, district court’s offset of unemployment compensation held “[a]s a matter of policy” not to be abuse of discretion). The parties’ calculations of interim earnings for each plaintiff yield the following: Bonura 134,299.00 Guarascio 176,334.00 Mousseau 100,249.00 H. Net Awards Based on the figures set forth above," }, { "docid": "23228229", "title": "", "text": "and the collateral source rule, is simply not determinative on this issue. In Gullett Gin, the Court held that unemployment compensation need not be deducted from a back pay award under the National Labor Relations Act. Id, at 364, 71 S.Ct. at 339. But the Court did not furnish clear guidance as to whether the use of collateral benefits was categorically disallowed or merely entrusted to the trier's discretion. See 2 Dobbs, supra, § 6.10(4), at 223-24; Thomas W. Lee, Comment, Deducting Employment Compensation and Ending Employment Discrimination: Continuing Conflict, 43 Emory L.J. 325, 326 (1994). . The Eighth Circuit recently noted this \"possible conflict.\" Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1112 n. 7 (8th Cir.), cert. denied, — U.S. —, 115 S.Ct. 355, 130 L.Ed.2d 310 (1994). . In addition to the cases catalogued above, several trial-level cases in this circuit take the same position. See, e.g., Townsend v. Grey Line Bus Co., 597 F.Supp. 1287, 1293 (D.Mass.1984) (\"The better view ... is that the recovery of back pay under Title VII is an equitable remedy intended primarily to make the victim of discrimination whole.”), aff'd, 767 F.2d 11 (1st Cir.1985); Thurber v. Jack Reilly's Inc., 521 F.Supp. 238, 242-43 (D.Mass.1981) (exercising equitable discretion to deduct unemployment benefits from the plaintiff's back pay award), aff'd, 717 F.2d 633 (1st Cir.1983), cert. denied, 466 U.S. 904, 104 S.Ct. 1678, 80 L.Ed.2d 153 (1984); see also Crosby v. New Eng. Tel. & Tel. Co., 624 F.Supp. 487, 491 (D.Mass.1985) (predicting in an ADEA case that the First Circuit will likely allow district courts to exercise discretion in tailoring back pay awards to account for collateral benefits). .To illustrate this point, we remind the reader that, while front pay is fully within the district court’s discretion, back pay is a presumptive entitlement of a plaintiff who successfully prosecutes an employment discrimination case. Compare, e.g., Wildman, 771 F.2d at 615 with Costa v. Markey, 706 F.2d 1, 6 (1st Cir.1982), cert. dismissed, 461 U.S. 920, 103 S.Ct. 2076, 77 L.Ed.2d 291 (1983), and cert. denied, 464 U.S. 1017, 104 S.Ct." }, { "docid": "19212362", "title": "", "text": "state aid provided “to carry out a policy of social betterment for the benefit of the entire state,” and not “to discharge any liability or obligation” of the employer, Gullett Gin, 340 U.S. at 364, 71 S.Ct. at 339, the employer winds up paying less to the employee than it would have had it not illegally terminated him. Based on these considerations, no circuit that has considered the matter has determined that unemployment benefits should, as a general rule, be deducted from backpay awards in discrimination cases. Circuits have split, however, over whether deducting unemployment benefits should be prohibited or should be left to the discretion of the trial court. The majority have held that, as a matter of law, unemployment benefits should not be deducted from backpay awards. See Craig, 721 F.2d at 85; Rasimas v. Michigan Dep’t of Mental Health, 714 F.2d 614, 627-28 (6th Cir.1983), cert. denied, 466 U.S. 950, 104 S.Ct. 2151, 80 L.Ed.2d 537 (1984); Kauffman v. Sidereal Corp., 695 F.2d 343, 346-47 (9th Cir.1982) (per curiam); E.E.O.C. v. Ford Motor Co., 645 F.2d 183, 196 (4th Cir.1981), rev’d & remanded on other grounds, 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982), original position adhered to on remand, 688 F.2d 951, 952 (4th Cir.1982) (per curiam); Brown v. A.J. Gerrard Mfg. Co., 715 F.2d 1549, 1550-51 (11th Cir.1983) (en banc) (per curiam). Three circuits have adopted a minority position that deducting unemployment benefits lies within the discretion of the trial court. See Cooper v. Asplundh Tree Expert Co., 836 F.2d 1644, 1665 (10th Cir.1988); Hunter, 797 F.2d at 1429 (Posner, J., acknowledging discretion as Seventh Circuit rule but stating that it “may be unduly favorable to defendants”); Marshall v. Goodyear Tire & Rubber Co., 554 F.2d 730, 736 (5th Cir.1977). The Second Circuit has in the past affirmed a deduction of unemployment benefits as discretionary, see E.E.O.C. v. Enterprise Assoc. Steamfitters Local 638 of U.A., 542 F.2d 579, 592 (2d Cir.1976), cert. denied, 430 U.S. 911, 97 S.Ct. 1186, 51 L.Ed.2d 588 (1977), but more recently indicated that the circuit’s rule remains unsettled," }, { "docid": "19212361", "title": "", "text": "as possible, the last vestiges of an unfortunate and ignominious page in this country’s history.” 422 U.S. at 417-18, 95 S.Ct. at 2371-72 (quoting United States v. N.L. Indus., Inc., 479 F.2d 354, 379 (8th Cir.1973)). Reducing a backpay award by unemployment benefits paid to the employee, not by the employer, but by a state agency, see NLRB v. Gullett Gin Co., 340 U.S. 361, 364, 71 S.Ct. 337, 339, 95 L.Ed. 337 (1951), makes it less costly for the employer to wrongfully terminate a protected employee and thus dilutes the prophylactic purposes of a backpay award. See Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 84 (3d Cir.1983); E.E.O.C. v. Ford Motor Co., 645 F.2d 183, 196 (4th Cir.1981), rev’d & remanded on other grounds, 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982). Indeed, it leads to a windfall to the employer who committed the illegal discrimination. Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1429 (7th Cir.1986); E.E.O.C. v. Sandia Corp., 639 F.2d 600, 626 (10th Cir.1980). By virtue of state aid provided “to carry out a policy of social betterment for the benefit of the entire state,” and not “to discharge any liability or obligation” of the employer, Gullett Gin, 340 U.S. at 364, 71 S.Ct. at 339, the employer winds up paying less to the employee than it would have had it not illegally terminated him. Based on these considerations, no circuit that has considered the matter has determined that unemployment benefits should, as a general rule, be deducted from backpay awards in discrimination cases. Circuits have split, however, over whether deducting unemployment benefits should be prohibited or should be left to the discretion of the trial court. The majority have held that, as a matter of law, unemployment benefits should not be deducted from backpay awards. See Craig, 721 F.2d at 85; Rasimas v. Michigan Dep’t of Mental Health, 714 F.2d 614, 627-28 (6th Cir.1983), cert. denied, 466 U.S. 950, 104 S.Ct. 2151, 80 L.Ed.2d 537 (1984); Kauffman v. Sidereal Corp., 695 F.2d 343, 346-47 (9th Cir.1982) (per curiam); E.E.O.C. v. Ford" }, { "docid": "23636007", "title": "", "text": "special circumstances, relying on the NLRB’s practice of awarding back pay. Thus, in analyzing the deductibility of unemployment benefits, we may reasonably turn for guidance to the practice under the NLRA. The NLRB’s refusal to deduct unemployment compensation from back pay was upheld in NLRB v. Gullett Gin Co., 340 U.S. 361, 71 S.Ct. 337, 95 L.Ed. 337 (1951). One of the bases relied on by the Court was the fact that when Congress amended the NLRA in 1947, the Board had been following this practice for many years. Thus, the Court concluded “by reenacting without pertinent modification [the back pay provision], Congress accepted the construction placed thereon by the Board and approved by the courts.” Id. at 366, 71 S.Ct. at 340-341. Since the Title VII back pay provision was based on the NLRA’s, we may, by analogous reasoning, impute a similar construction to Congress. We recognize that the NLRA back pay provision does not contain the “interim earnings” deduction language contained in Title VII. It is clear, however, from the Gullett Gin decision that, in fact, the Board does deduct “earnings of employees from other employment during the back pay period and also sums which they failed without excuse to earn.” Id. at 363, 71 S.Ct. at 339 (citations omitted). Therefore, in practice, under the NLRA, and by statute under Title VII, interim earnings must be deducted. Given the parity between the back pay remedies in both statutes suggested by the Supreme Court, it follows that the NLRB’s practice not to deduct unemployment compensation from the back pay award, notwithstanding its deduction of interim earnings, counsels a similar construction of Title VII. Brown v. A.J. Gerrard Manufacturing Co., 715 F.2d at 1550-51; see also EEOC v. Ford Motor Co., 645 F.2d at 195-96. (3) Unemployment compensation most clearly resembles a collateral benefit which is ordinarily not deducted from a plaintiff’s recovery. Under the collateral benefit rule, payment which a plaintiff receives for his or her loss from another source is not credited against the defendant’s liability for all damages resulting from its wrongful or negligent act. Restatement (Second)" }, { "docid": "11776074", "title": "", "text": "trial. Given our disposition of the evidentiary claims, his right to a new trial must depend solely on this admitted error. . In analogous areas, such as Title VII and Age Discrimination in Employment Act (ADEA) actions, the courts are split as to whether unemployment compensation payments should be deducted from back pay awards. Compare Maxfield v. Sinclair Int'l, 766 F.2d 788, 793-795 (3d Cir.1985), certiorari denied, — U.S. —, 106 S.Ct. 796, 88 L.Ed.2d 773, and Kauffman v. Sideral Corp., 695 F.2d 343, 346-347 (9th Cir.1982), with Satty v. Nashville Gas Co., 522 F.2d 850 (6th Cir.1975), affirmed in part and vacated in part, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356. Most circuits including our own hold that the decision whether to deduct is within the discretion of the district court. See Orzel v. Wauwatosa Fire Dep’t, 697 F.2d 743, 756 (7th Cir.1983); Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 161-162 (7th Cir.1981). In most of these cases the employer argues that because it contributed to the unemployment compensation fund (usually through taxation) the benefits are direct rather than collateral. Courts have rejected that argument. See Gullett Gin, 340 U.S. at 364-365, 71 S.Ct. at 340; Craig v. Y & Y Snacks, Inc., 721 F.2d 77 (3d Cir.1983). Here Larson cannot make that argument because he did not make any contributions to that fund. Therefore, the unemployment compensation payments were plainly collateral and not deductible." }, { "docid": "2715835", "title": "", "text": "back pay deducted the $962 paid to Brown in state unemployment compensation. Brown appeals the deduction of the unemployment compensation benefits. The back pay provision of Title VII was expressly modeled on the back pay provision of the National Labor Relations Act (NLRA). Albemarle Paper Co. v. Moody, 422 U.S. 405, 419, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975). In National Labor Relations Board v. Gullett Gin, 340 U.S. 361, 364, 71 S.Ct. 337, 339, 95 L.Ed. 337 (1950), the Supreme Court held that it was within the discretion of the Labor Relations Board to refuse to deduct unemployment compensation payment from back pay awarded' for a labor violation. Focusing on the holding in Gullett Gin that the Board did not abuse its discretion in that case, our Court has held that whether such payment should be deducted from Title VII awards was a matter within the trial court’s discretion. Merriweather v. Hercules, Inc., 631 F.2d 1161 (5th Cir.1980) (upholding district court’s deduction). See Marshall v. Goodyear Tire & Rubber Co., 554 F.2d 730 (5th Cir.1977) (upholding district court’s denial of deduction under Age Discrimination in Employment Act). Other courts have so held. E.g., Grant v. Bethlehem Steel Corp., 622 F.2d 43, 47 (2d Cir.1980); Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 401 (3d Cir.1976), cert, denied, 429 U.S. 1041, 97 S.Ct. 741, 50 L.Ed.2d 753 (1977); EEOC v. Enterprise Association Steamfitters, 542 F.2d 579, 591-92 (2d Cir.1976), cert, denied, 430 U.S. 911, 97 S.Ct. 1186, 51 L.Ed.2d 588 (1977); Satty v. Nashville Gas Co., 522 F.2d 850, 855 (6th Cir.1975), vacated and remanded on other grounds, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977); Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 721 (7th Cir.1969). Cf. Syvock v. Milwaukee Boiler Manufacturing Co., 665 F.2d 149, 161-62 (7th Cir. 1981) (upholding allowance of deduction in age discrimination suit). Still others have held that unemployment compensation may not be deducted from a Title VII back pay award. Kauffman v. Sidereal Corp., 695 F.2d 343, 346-47 (9th Cir.1982); EEOC v. Ford Motor Co., 645 F.2d 183, 195-96 (4th Cir.1981)," }, { "docid": "23228206", "title": "", "text": "Elec. Co., 953 F.2d 447, 451-52 (8th Cir.1992) (holding that pension benefits should not be considered in fashioning an ADEA front pay award), we deem this virtually seamless array of precedents to be worthy of our allegiance. Our conviction that the majority rule is the better rule is not weakened by the debate that has rent the circuits in regard to whether collateral benefits should be subtracted from back pay awards in employment discrimination cases. According to our rough count, courts of appeals have divided four-to-three on this issue. Compare EEOC v. Wyoming Retirement Sys., 771 F.2d 1425, 1431 (10th Cir.1985) (holding under the ADEA that “[deduction of collateral sources of income from a back pay award is a matter within the trial court’s discretion”) and Orzel v. City of Wauwatosa Fire Dep’t., 697 F.2d 743, 756 (7th Cir.) (similar), cert. denied, 464 U.S. 992, 104 S.Ct. 484, 78 L.Ed.2d 680 (1983) and Merriweather v. Hercules, Inc., 631 F.2d 1161, 1168 (5th Cir.1980) (similar in regard to Title VII back pay awards) and EEOC v. Enterprise Ass’n. Steamfitters Local No. 638, 542 F.2d 579, 591-92 (2d Cir.1976) (allowing district court to offset public assistance payments against a Title VII back pay award), cert. denied, 430 U.S. 911, 97 S.Ct. 1186, 51 L.Ed.2d 588 (1977) with Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 81-85 (3d Cir.1983) (holding that unemployment compensation should not be deducted from a Title VII back pay award) and Brown v. A.J. Gerrard Mfg. Co., 715 F.2d 1549, 1550-51 (11th Cir.1983) (en banc) (similar) and EEOC v. Ford Motor Co., 688 F.2d 951, 952 (4th Cir.1982) (similar). Three other circuits have shown signs of an internal division. Compare Hawley v. Dresser Indus., Inc., 958 F.2d 720, 726 (6th Cir.1992) (approving the deduction of pension benefits from an ADEA back pay award) with Rasimas v. Michigan Dep’t. of Mental Health, 714 F.2d 614, 627 (6th Cir.1983) (holding that “[unemployment benefits ... should not be deducted from backpay awards” under Title VII), cert. denied, 466 U.S. 950, 104 S.Ct. 2151, 80 L.Ed.2d 537 (1984); and compare Glover" }, { "docid": "22861738", "title": "", "text": "Inc. of Texas, 495 F.Supp. 257 (D.Colo.1980), the court found that Social Security benefits should not be offset. Even more significant for us is that the reasoning applied by this court in two recent cases dealing with setoffs supports the district court’s action here. In Craig v. Y&Y Snacks, Inc., 721 F.2d 77 (3d Cir.1983), we held that unemployment compensation should not be deducted from a Title YII backpay award. We reasoned that Congress had explicitly required a deduction for interim earnings and amounts earnable with reasonable diligence and that its failure to provide for other setoffs should be given effect. Id. at 82. We also noted that the NLRB has refused to deduct those benefits in actions brought under the National Labor Relations Act (NLRA), 29 U.S.C. § 160(c) (1982), the act that served as the model for Title VII’s backpay provision. We presumed from Congress’ failure to alter the language to require a different construction that it intended a similar construction. Id. at 82-83. Under the collateral source rule payments under Social Security, welfare programs, unemployment compensation and similar programs have all been treated as collateral benefits which would not ordi narily be set off against damages awarded. In Craig, we rejected the argument that the collateral source rule provided plaintiffs with an inequitable double recovery, finding “no reason why the benefit should be shifted to the defendant____” Id. at 83. Relying on the Supreme Court’s decision in NLRB v. Gullett Gin Co., 340 U.S. 361, 71 S.Ct. 337 L.Ed. 95, 337 (1951), upholding the NLRB’s practice, we concluded that unemployment benefits were collateral. Id. at 83-84. Finally, we found that the objectives of ending employment discrimination and compensating victims in a make whole fashion would be furthered by a rule precluding deduction of the benefits. Id. at 84. We also rejected the argument that the decision whether to offset should be left to the discretion of the district court, favoring instead “to fashion uniform rules ... to further the statutory objectives____” Id. at 85. In McDowell v. Avtex Fibers, Inc., 740 F.2d 214, 215-17 (3d Cir.1984), vacated" }, { "docid": "23228228", "title": "", "text": "discretion. But because the court, in calculating a particular offset, relied on evidence dehors the record, we vacate the judgment and remand for further proceedings relating to that offset. Affirmed in part, vacated in part, and remanded. Each party shall bear his own counsel fees and costs in regard to these appeals. . The named defendant is the Postmaster General, but, for all intents and purposes, the Service is the real party in interest, and we treat it as such. . We limit this holding to situations where, as here, (1) front pay is a discretionary equitable remedy, and (2) there is no statutory impediment to factoring collateral benefits into the mix. . This is particularly true in view of the close relationship between the ADEA and Title VII. See, e.g., McKennon v. Nashville Banner Publ. Co., - U.S. -, -, 115 S.Ct. 879, 884, 130 L.Ed.2d 852 (1995). . NLRB v. Gullett Gin Co., 340 U.S. 361, 71 S.Ct. 337, 95 L.Ed. 337 (1951), frequently cited in connection with the interplay between back pay and the collateral source rule, is simply not determinative on this issue. In Gullett Gin, the Court held that unemployment compensation need not be deducted from a back pay award under the National Labor Relations Act. Id, at 364, 71 S.Ct. at 339. But the Court did not furnish clear guidance as to whether the use of collateral benefits was categorically disallowed or merely entrusted to the trier's discretion. See 2 Dobbs, supra, § 6.10(4), at 223-24; Thomas W. Lee, Comment, Deducting Employment Compensation and Ending Employment Discrimination: Continuing Conflict, 43 Emory L.J. 325, 326 (1994). . The Eighth Circuit recently noted this \"possible conflict.\" Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1112 n. 7 (8th Cir.), cert. denied, — U.S. —, 115 S.Ct. 355, 130 L.Ed.2d 310 (1994). . In addition to the cases catalogued above, several trial-level cases in this circuit take the same position. See, e.g., Townsend v. Grey Line Bus Co., 597 F.Supp. 1287, 1293 (D.Mass.1984) (\"The better view ... is that the recovery of back pay under Title" }, { "docid": "23228207", "title": "", "text": "Enterprise Ass’n. Steamfitters Local No. 638, 542 F.2d 579, 591-92 (2d Cir.1976) (allowing district court to offset public assistance payments against a Title VII back pay award), cert. denied, 430 U.S. 911, 97 S.Ct. 1186, 51 L.Ed.2d 588 (1977) with Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 81-85 (3d Cir.1983) (holding that unemployment compensation should not be deducted from a Title VII back pay award) and Brown v. A.J. Gerrard Mfg. Co., 715 F.2d 1549, 1550-51 (11th Cir.1983) (en banc) (similar) and EEOC v. Ford Motor Co., 688 F.2d 951, 952 (4th Cir.1982) (similar). Three other circuits have shown signs of an internal division. Compare Hawley v. Dresser Indus., Inc., 958 F.2d 720, 726 (6th Cir.1992) (approving the deduction of pension benefits from an ADEA back pay award) with Rasimas v. Michigan Dep’t. of Mental Health, 714 F.2d 614, 627 (6th Cir.1983) (holding that “[unemployment benefits ... should not be deducted from backpay awards” under Title VII), cert. denied, 466 U.S. 950, 104 S.Ct. 2151, 80 L.Ed.2d 537 (1984); and compare Glover v. McDonnell Douglas Corp., 12 F.3d 845, 848 (8th Cir.) (holding that the district court erred in refusing to offset pension payments from an award of back pay), cert. denied, — U.S. —, 114 S.Ct. 1647, 128 L.Ed.2d 366 (1994) with Doyne, 953 F.2d at 451-52 (contra ); and compare Naton v. Bank of Cal., 649 F.2d 691, 700 (9th Cir.1981) (holding that district courts possess discretion to deduct collateral benefits from back pay awards in ADEA cases) with Kauffman v. Sidereal Corp., 695 F.2d 343, 347 (9th Cir.1982) (holding in a Title VII case that “unemployment benefits received by a successful plaintiff in an employment discrimination action are not offsets against a backpay award”). While we tend to agree with those courts that have held the interplay between collateral benefits and back pay to be a matter within the district court’s discretion, we need not decide that precise question today. Even if we assume, arguendo, that granting discretion to district courts to deduct collateral benefits from back pay awards is problematic, front pay presents" } ]

[ { "docid": "3575563", "title": "", "text": "Tax could lead to conflicts with the United States trading partners and would violate American obligations under the General Agreement on Tariffs and Trade (GATT), and that Congress did not intend to make the application of the Harbor Tax to exports severable from the balance of the tax because of such concerns. In rejecting this argument in Amoco Oil, supra, the Court of International Trade noted that although there was “some evidence [in the legislative history] to support” the argument that “Congress was so fearful of negative GATT implications that it would not have enacted the [Harbor Tax] on imports without the [Harbor Tax] on exports,” it was “insufficient to rebut the strong presumption of severability.” Amoco Oil, supra, slip op. at 9,12. Neither our trading partners nor the World Trade Organization has taken final formal action directed against the Harbor Tax. It is speculative and conjectural whether they will do so. If they take such action and the result is to create serious problems, either the executive or the legislative branch presumably will take appropriate action. In sum, Carnival has not presented the “strong evidence” necessary to overcome the “presumption that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision.” Alaska Airlines, 480 U.S. at 686, 107 S.Ct. 1476. CONCLUSION The judgment of the Court of International Trade that the Harbor Tax “is unconstitutional as it applies to cruise ship passengers” and ordering the refund of the tax fees collected on Carnival cruise ships, is reversed. The case is remanded to that court for further proceedings consistent with this opinion, including consideration of Carnival’s other objections to the imposition of the tax on cruise ship passengers that that court has not yet decided. REVERSED AND REMANDED." } ]

[ { "docid": "16379882", "title": "", "text": "against imports as compared to exports or domestic shipments, we hold them also not based on importation because these taxes apply equally to both domestic and imported petroleum products. We therefore affirm as to them as well. BACKGROUND Warren imported petroleum products on three different occasions from December 1995 to January 1996, paying regular customs duties and HMT on each occasion, and also paying ET on two of the three occasions. Subsequently, Warren exported petroleum products that were “commercially interchangeable” with the imported merchandise, a statutory prerequisite for “drawback” refunds. Based on the exportation, on July 15, 1996, Warren submitted drawback claims to the United States Customs Service (“Customs”) requesting refund of the charges paid. On October 4, 1996, Customs “liquidated” the drawback entries and allowed a 99% drawback refund of the “Column 1 customs duties” pursuant to 19 U.S.C. § 1313(p). On January 3, 1997, Warren protested Customs’ decision “to refuse to grant drawback of the HMT and ET paid in connection with the imported merchandise” and on February 26, 1997, Customs denied Warren’s protest on the merits. Warren then filed an action with the Court of International Trade. The government argued that the Court of International Trade lacked jurisdiction because it only has jurisdiction under 28 U.S.C. § 1581(a) where a valid protest has been denied. The government maintained that Warren did not have grounds to file a protest since its original drawback request did not include HMTs or ETs and was granted as to regular duties, the only subject of the request. The government argued that, accordingly, there was no valid protest. The Court of International Trade, however, held that it did have jurisdiction because Customs’ denial of the protest specifying the two taxes was made on the merits and it would thus have been futile for Warren to file a second drawback request specifying HMT and ET. Warren, at 1373. Although the two taxes were omitted from the original request for drawback, they were clearly raised in the protest and that was enough. Id. According to the court, Warren did not need to further exhaust administrative" }, { "docid": "2350526", "title": "", "text": "Shoe, the Supreme Court held that the export provision of the HMT, 26 U.S.C. § 4461(c)(1)(B), violated the Export Clause of the Constitution. U.S. Const, art. I, § 10, cl. 2. The government filed a motion to dismiss for failure to state a claim upon which relief can be granted, which the Court of International Trade granted. The court concluded that: (1) the export provision of the HMT is severable from the remainder of the HMT; (2) the HMT does not violate the Uniformity Clause, U.S. Const, art. I, § 8, cl. 1; and (3) the HMT does not violate the Port Preference Clause, U.S. Const, art. I, § 9, cl. 6. Amoco, 63 F.Supp.2d at 1339-41. With respect to the severability issue, the court based its conclusion on the existence of a general sever-ability provision within the WRDA, codified at 33 U.S.C. § 2304, and on its duty to interpret statutes “so as to maintain, rather than destroy, their constitutionality” when possible. Amoco, 63 F.Supp.2d at 1335-39. As for the remaining constitutional issues, the court concluded that the HMT did not violate either the Uniformity Clause or the Port Preference Clause because the “geographically-specific” provisions did not result in a discriminatory preference and Amoco had failed to demonstrate that Congress explicitly discriminated against any particular state. Id . at 1340-41. Amoco timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (1994). DISCUSSION The decision of the Court of International Trade to grant a motion to dismiss for failure to state a claim upon which relief can be granted is a question of law, which we review de novo. See Ponder v. United States, 117 F.3d 549, 552 (Fed.Cir.1997). On a motion to dismiss for failure to state a claim, any factual allegations in the complaint are assumed to be true and all inferences are drawn in favor of the plaintiff. Id. Dismissal for failure to state a claim is proper only when it is beyond doubt that the plaintiff can prove no set of facts that would entitle it to relief. Id. (citing Conley" }, { "docid": "2350530", "title": "", "text": "opportunity to conduct discovery, is without merit. With respect to Amoco’s remaining arguments, the government correctly points out that this court has previously addressed the severability issue raised in this appeal. In two recent opinions, we have specifically held that the unconstitutional export provision in the HMT is severable from the remainder of the statute. Princess Cruises, 201 F.3d at 1358; Carnival Cruise Lines, Inc. v. United States, 200 F.3d 1361 (Fed.Cir.2000). In Carnival, we expressly rejected the argument that the severability clause in the WRDA, 33 U.S.C. § 2304, does not apply to the HMT. Carnival, 200 F.3d at 1368. Furthermore, we also rejected the argument that Congress did not intend to make the export provision of the HMT severable from the import provision because a tax on imports alone would violate the GATT. Id. at 1369. Accordingly, Amoco’s argument that Congress did not intend the export provision of the HMT to be severable from the import provision is beyond the power of this panel to accept, and Amoco makes no request that this court hear the issue en banc. In its reply brief, Amoco raises the argument that the HMT is invalid because it violates the Uniformity Clause and the Port Preference Clause of the Constitution. Because these constitutional arguments were not raised in Amoco’s opening brief, we decline to address them. Although the Court of International Trade had decided three issues (relating to sever-ability, the Uniformity Clause, and the Port Preference Clause), Amoco’s counsel chose to argue only the severability issue in its opening brief to this court. As a result, under well-established appellate practice, the other two issues were effectively waived. Carbino v. West, 168 F.3d 32, 34-35 (Fed.Cir.1999) (explaining that under the Federal Rules of Appellate Procedure, a reply brief should “reply to the brief of the appellee” and “is not the appropriate place to raise, for the first time, an issue for appellate review”). Nevertheless, out of an excess of caution, the government briefed all three issues. In its reply brief, then, counsel for Amoco presented argument concerning the two issues that were not" }, { "docid": "13418585", "title": "", "text": "Opinion Restani, Judge: The government seeks dismissal for lack of jurisdiction of the action brought by Thomson Consumer Electronics, Inc. (“Thomson”) for recovery of Harbor Maintenance Taxes (“HMT”) collected pursuant to 26 U.S.C. §§ 4461, 4462 (1994) on Thomson’s entries. The entries consisted of electronics products imported into the Customs territory of the United States in 1992 and subsequent years, and liquidated with HMT included. Challenges to duties, taxes and other charges on imports within the jurisdiction of the Secretary of the Treasury are made by way of protest of liquidation pursuant to 19 U.S.C. § 1514(c). Unless such protest is filed, the liquidation is final. See 19 U.S.C. § 1514(a); United States v. Utex Int’l., Inc., 857 F.2d 1408, 1409-11, 1413-14 (Fed. Cir. 1988) (Customs’ decisions merging into liquidation must be protested to avoid finality); United States v. Ataka America, Inc., 17 CIT 598, 606, 826 F. Supp. 495, 502 (1993) (same); Halperin Shipping Co., Inc. v. United States, 14 CIT 438, 442, 742 F. Supp. 1163, 1167 (1990) (same). If a valid protest of a liquidation decision is filed and denied, the court has jurisdiction pursuant to 28 U.S.C. § 1581(a) over any action challenging the protest denial. Thomson’s HMT payments on imports were subject to a liquidation which was not protested. The liquidation decision is placed within the jurisdiction of the Secretary of the Treasury pursuant to 26 U.S.C. § 4462(f)(1), as if the HMT were a customs duty. Accordingly, the court lacks jurisdiction under 28 U.S.C. § 1581(a). Thomson, however, alleges jurisdiction under 28 U.S.C. § 1581(i), the court’s residual jurisdiction provision. Section 1581(i) jurisdiction is available only if jurisdiction is not available under any other provision of 28 U.S.C. § 1581, or if relief under such other provision would be “mani festly inadequate.” Miller, 824 F.2d at 963; Cane Sugar Refiners’, 683 F.2d 399, 402 n. 5. Thompson argues that 28 U.S.C. § 1581(a) was never an appropriate vehicle for this constitutional challenge to the viability of HMT on imports, thus 28 U.S.C. § 1581(i) residual jurisdiction applies. The courts, however, have long recognized that" }, { "docid": "16379887", "title": "", "text": "not exhaust its administrative remedies, which the government asserts is a prerequisite to Court of International Trade jurisdiction. We disagree. The jurisdictional provision relied on by the Court of International Trade and Warren reads: § 1581. Civil actions against the United States and agencies and officers thereof (a) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930 [19 U.S.C. § 1515]. 28 U.S.C. § 1581(a) (2000). Because the provision as worded requires only the denial of a protest to establish Court of International Trade jurisdiction, Customs’ denial of Warren’s protest on the merits is sufficient. The government cites no precedent refuting the trial court’s commonsense reading of § 1581(a) or the logical link between futility — Warren knew that Customs would not refund HMTs and ETs because Customs already clearly denied Warren’s claims for such drawback, albeit in the context of a protest — and the sufficiency of a denial of a protest for purposes of jurisdiction. That Warren could have filed new, independent requests for drawback of HMTs and ETs because of an extended time-window does not mean that it had to do so despite Customs having already ruled on the merits. When the government argues that a new filing by Warren would not have been futile, it confuses administrative futility with time bars. Futility occurs where the filing party already knows that the agency would deny its claim because the agency has already done so. Parties are not required to perform useless acts to exhaust administrative remedies. See Thomson Consumer Elecs., Inc. v. United States, 247 F.3d 1210, 1212, 1214-15 (Fed.Cir.2001) (explaining generally the purpose of requiring exhaustion of administrative remedies and holding specifically that a protest is not required for the Court of International Trade to have jurisdiction over civil refund actions in which a protest to Customs would be futile because of Customs’ lack of authority over the subject matter). We, thus, hold that the Court of International Trade correctly" }, { "docid": "2350528", "title": "", "text": "v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Amoco argues that the issue of sever-ability is a question of fact, and that it was therefore improper for the court to dismiss Amoco’s complaint without giving Amoco a reasonable opportunity to conduct discovery and present additional evidence. Amoco further contends that the severability clause in Title IX of the WRDA does not apply to the HMT, and that Congress did not intend the export provision of the HMT to be severable from the import provision because a tax on imports alone would violate the General Agreement on Tariffs and Trade (“GATT”). The government responds that the Court of International Trade did not err in denying Amoco’s request for discovery because the issue of severability is a question of law, not fact. The government further asserts that this court has previously held that the severability clause in Title IX of the WRDA applies to the HMT, and that the export provision of the HMT is severa-ble from the remainder of the HMT. Final ly, the government argues that the HMT does not violate the Uniformity Clause or the Port Preference Clause, and that Amoco has waived any arguments to the contrary by failing to raise them in its opening brief. With respect to Amoco’s procedural argument, we agree with the government that the issue of severability is a question of law. As we have previously indicated, the issue of severability is a matter of statutory interpretation. See Princess Cruises, Inc. v. United States, 201 F.3d 1352 (Fed.Cir.2000) (citing Alaska Airlines v. Donovan, 766 F.2d 1550, 1555 (D.C.Cir.1985), for the proposition that the question of severability “reduces to a matter of statutory interpretation”). Moreover, we have repeatedly stated that issues of statutory interpretation are questions of law. See, e.g., IBM Corp. v. United States, 201 F.3d 1367, 1370 (Fed.Cir.2000); Rheem Metalurgica S/A v. United States, 160 F.3d 1357, 1358 (Fed.Cir.1998). Accordingly, Amoco’s argument that sever-ability is a question of fact, and that it was therefore improper for the court to dismiss Amoco’s complaint without giving Amoco a reasonable" }, { "docid": "2350524", "title": "", "text": "LOURIE, Circuit Judge. Amoco Oil Company appeals from the decision of the United States Court of International Trade granting the government’s motion to dismiss for failure to state a claim upon which relief can be granted. Amoco Oil Co. v. United States, 63 F.Supp.2d 1332 (Ct. Int’l Trade 1999). Because the Court of International Trade did not err in concluding that the unconstitutional export provision of the Harbor Maintenance Tax (“the HMT”), codified at 26 U.S.C. § 4461 (1994), is severable from the remainder of the HMT, we affirm. BACKGROUND The HMT, contained in Title XIV of the Water Resources Development Act of 1986, Pub.L. No. 99-662, 100 Stat. 4082 (1986) (“WRDA”), is an ad valorem tax on commercial cargo involved in “any port use,” including imports. 26 U.S.C. § 4461(a). The HMT was intended to help finance the general maintenance and improvement of U.S. ports. S.Rep. No. 99-126, at 9-10 (1985), reprinted in 1986 U.S.C.C.A.N. 6639, 6640-47. The relevant portions of the HMT provide as follows: § 4461. Imposition of tax (a) General rule. — There is hereby imposed a tax on any port use. (b) Amount of tax. — The amount of the tax imposed by subsection (a) on any port use shall be an amount equal to 0.125 percent of the value of the commercial cargo involved. (c) Liability and time of imposition of tax.— (1) Liability. — The tax imposed by subsection (a) shall be paid by— (A) in the case of cargo entering the United States, the importer, (B) in the case of cargo to be exported from the United States, the exporter ... 26 U.S.C. § 4461. As an importer, Amoco was subject to the HMT under 26 U.S.C. § 4461(c)(1)(A). After allegedly making payments in excess of $1,000,000, Amoco filed a complaint in the Court of International Trade, challenging the constitutionality of the import provision of the HMT, 26 U.S.C. § 4461(c)(1)(A), in light of the Supreme Court’s decision in United States v. U.S. Shoe Corp., 523 U.S. 360, 118 S.Ct. 1290, 140 L.Ed.2d 453 (1998). Amoco, 63 F.Supp.2d at 1335. In U.S." }, { "docid": "2350529", "title": "", "text": "Final ly, the government argues that the HMT does not violate the Uniformity Clause or the Port Preference Clause, and that Amoco has waived any arguments to the contrary by failing to raise them in its opening brief. With respect to Amoco’s procedural argument, we agree with the government that the issue of severability is a question of law. As we have previously indicated, the issue of severability is a matter of statutory interpretation. See Princess Cruises, Inc. v. United States, 201 F.3d 1352 (Fed.Cir.2000) (citing Alaska Airlines v. Donovan, 766 F.2d 1550, 1555 (D.C.Cir.1985), for the proposition that the question of severability “reduces to a matter of statutory interpretation”). Moreover, we have repeatedly stated that issues of statutory interpretation are questions of law. See, e.g., IBM Corp. v. United States, 201 F.3d 1367, 1370 (Fed.Cir.2000); Rheem Metalurgica S/A v. United States, 160 F.3d 1357, 1358 (Fed.Cir.1998). Accordingly, Amoco’s argument that sever-ability is a question of fact, and that it was therefore improper for the court to dismiss Amoco’s complaint without giving Amoco a reasonable opportunity to conduct discovery, is without merit. With respect to Amoco’s remaining arguments, the government correctly points out that this court has previously addressed the severability issue raised in this appeal. In two recent opinions, we have specifically held that the unconstitutional export provision in the HMT is severable from the remainder of the statute. Princess Cruises, 201 F.3d at 1358; Carnival Cruise Lines, Inc. v. United States, 200 F.3d 1361 (Fed.Cir.2000). In Carnival, we expressly rejected the argument that the severability clause in the WRDA, 33 U.S.C. § 2304, does not apply to the HMT. Carnival, 200 F.3d at 1368. Furthermore, we also rejected the argument that Congress did not intend to make the export provision of the HMT severable from the import provision because a tax on imports alone would violate the GATT. Id. at 1369. Accordingly, Amoco’s argument that Congress did not intend the export provision of the HMT to be severable from the import provision is beyond the power of this panel to accept, and Amoco makes no request that this" }, { "docid": "2350527", "title": "", "text": "court concluded that the HMT did not violate either the Uniformity Clause or the Port Preference Clause because the “geographically-specific” provisions did not result in a discriminatory preference and Amoco had failed to demonstrate that Congress explicitly discriminated against any particular state. Id . at 1340-41. Amoco timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (1994). DISCUSSION The decision of the Court of International Trade to grant a motion to dismiss for failure to state a claim upon which relief can be granted is a question of law, which we review de novo. See Ponder v. United States, 117 F.3d 549, 552 (Fed.Cir.1997). On a motion to dismiss for failure to state a claim, any factual allegations in the complaint are assumed to be true and all inferences are drawn in favor of the plaintiff. Id. Dismissal for failure to state a claim is proper only when it is beyond doubt that the plaintiff can prove no set of facts that would entitle it to relief. Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Amoco argues that the issue of sever-ability is a question of fact, and that it was therefore improper for the court to dismiss Amoco’s complaint without giving Amoco a reasonable opportunity to conduct discovery and present additional evidence. Amoco further contends that the severability clause in Title IX of the WRDA does not apply to the HMT, and that Congress did not intend the export provision of the HMT to be severable from the import provision because a tax on imports alone would violate the General Agreement on Tariffs and Trade (“GATT”). The government responds that the Court of International Trade did not err in denying Amoco’s request for discovery because the issue of severability is a question of law, not fact. The government further asserts that this court has previously held that the severability clause in Title IX of the WRDA applies to the HMT, and that the export provision of the HMT is severa-ble from the remainder of the HMT." }, { "docid": "23039784", "title": "", "text": "In either case, however, jurisdiction lay only in the Court of International Trade. Section 1581(a) provides the Court of International Trade with jurisdiction over suits contesting the denial of a Customs protest, while § 1581(f) provides for jurisdiction over suits arising out of “administration and enforcement with respect to the matters referred to in [the preceeding paragraphs],” which include any laws providing revenue from imports. In United States Shoe, the government argued that jurisdiction was proper under § 1581(a), and that recovery was limited to amounts protested within ninety days of payment. See United States Shoe Corp. v. United States, 114 F.3d 1564, 1568 (Fed.Cir.1997), aff'd 523 U.S. 360, 118 S.Ct. 1290, 140 L.Ed.2d 453 (1998). The Supreme Court, however, held that exclusive jurisdiction existed under § 1581(i). United States Shoe, 523 U.S. at 365-66, 118 S.Ct. 1290. In Swisher, this court subsequently held that an exporter seeking a refund could alternatively file a claim for refund, protest Customs’ refusal to grant a refund and, upon denial of the protest, sue in the Court of International Trade under § 1581(a). See Swisher Int’l Inc. v. United States, 205 F.3d 1358, 1369 (Fed.Cir.2000). Although jurisdictional confusion thus existed, it is significant that neither the Supreme Court nor this Court ever suggested that a suit for recovery of the HMT could be maintained under the Tucker Act with its six-year statute of limitations. Armed with this confusion over the remedy available for challenges to the HMT, Stone cites Reich v. Collins, 513 U.S. 106, 108, 115 S.Ct. 547, 130 L.Ed.2d 454 (1994), for the proposition that “due process requires a ‘clear and certain’ remedy for taxes collected in violation of federal law.” Reich, however, is best characterized as a “bait-and-switch” case. The Supreme Court in Reich stated that Georgia was not allowed to “hold out what plainly appears to be a ‘clear and certain’ postdeprivation remedy and then declare, only after the disputed taxes have been paid, that no such remedy exists.” Id. Reich stands, at most, for the proposition that a state (or the federal government) may not restrict access to" }, { "docid": "22257165", "title": "", "text": "Trade at 208-09. 28 U.S.C. § 2644 permits a judicial award of interest upon a judgment in a civil action brought pursuant to 19 U.S.C. § 1515 to contest the denial of an administrative protest. Appellee, however, did not pursue a refund of HMT payments through a customs protest. Indeed, in the earlier test case, the Court of International Trade had jurisdiction over the constitutional challenge to the HMT under 28 U.S.C. § 1581(i), the residual jurisdiction provision, and not under 28 U.S.C. § 1581(a), the provision that gives the Court of International Trade jurisdiction over actions filed under 19 U.S.C. § 1515. See U.S. Shoe, 528 U.S. at 366, 118 S.Ct. 1290. Because appellee did not file an administrative protest and did not contest the denial of such a protest, appellee is not entitled to interest under 28 U.S.C. § 2644. The customs laws also provide for pre-judgment interest on certain excess duties paid to Customs. Specifically, “[i]nterest on excess moneys deposited shall accrue ... from the date the importer of record deposits estimated duties, fees and interest ... to the date of liquidation or reliquidation of the applicable entry or reconciliation.” 19 U.S.C. § 1505(c) (emphasis added); see also 19 U.S.C. § 1520(d) (1988) (repealed 1993) (authorizing interest “if a determination is made to reliquidate an entry”). On its face, the statute contemplates an entirely different factual scenario from the one before us. However, amici suggest that by substituting the exporter for the “importer of record,” the HMT quarterly report for the “entry,” and Customs’ acceptance of the HMT payment for “liquidation,” we can apply § 1505(c) to provide interest on HMT refunds. We are without power to rewrite a Congressional enactment to make it fit a case for which it was clearly not intended, no matter how compelling the case, particularly in light of the Supreme Court’s mandate that Congress must expressly consent to an award of interest. See Shaw, 478 U.S. at 314, 106 S.Ct. 2957. Accordingly, § 1505(c) does not authorize interest on HMT refunds. In sum, we are bound by the rule that the" }, { "docid": "2350525", "title": "", "text": "— There is hereby imposed a tax on any port use. (b) Amount of tax. — The amount of the tax imposed by subsection (a) on any port use shall be an amount equal to 0.125 percent of the value of the commercial cargo involved. (c) Liability and time of imposition of tax.— (1) Liability. — The tax imposed by subsection (a) shall be paid by— (A) in the case of cargo entering the United States, the importer, (B) in the case of cargo to be exported from the United States, the exporter ... 26 U.S.C. § 4461. As an importer, Amoco was subject to the HMT under 26 U.S.C. § 4461(c)(1)(A). After allegedly making payments in excess of $1,000,000, Amoco filed a complaint in the Court of International Trade, challenging the constitutionality of the import provision of the HMT, 26 U.S.C. § 4461(c)(1)(A), in light of the Supreme Court’s decision in United States v. U.S. Shoe Corp., 523 U.S. 360, 118 S.Ct. 1290, 140 L.Ed.2d 453 (1998). Amoco, 63 F.Supp.2d at 1335. In U.S. Shoe, the Supreme Court held that the export provision of the HMT, 26 U.S.C. § 4461(c)(1)(B), violated the Export Clause of the Constitution. U.S. Const, art. I, § 10, cl. 2. The government filed a motion to dismiss for failure to state a claim upon which relief can be granted, which the Court of International Trade granted. The court concluded that: (1) the export provision of the HMT is severable from the remainder of the HMT; (2) the HMT does not violate the Uniformity Clause, U.S. Const, art. I, § 8, cl. 1; and (3) the HMT does not violate the Port Preference Clause, U.S. Const, art. I, § 9, cl. 6. Amoco, 63 F.Supp.2d at 1339-41. With respect to the severability issue, the court based its conclusion on the existence of a general sever-ability provision within the WRDA, codified at 33 U.S.C. § 2304, and on its duty to interpret statutes “so as to maintain, rather than destroy, their constitutionality” when possible. Amoco, 63 F.Supp.2d at 1335-39. As for the remaining constitutional issues, the" }, { "docid": "16379883", "title": "", "text": "protest on the merits. Warren then filed an action with the Court of International Trade. The government argued that the Court of International Trade lacked jurisdiction because it only has jurisdiction under 28 U.S.C. § 1581(a) where a valid protest has been denied. The government maintained that Warren did not have grounds to file a protest since its original drawback request did not include HMTs or ETs and was granted as to regular duties, the only subject of the request. The government argued that, accordingly, there was no valid protest. The Court of International Trade, however, held that it did have jurisdiction because Customs’ denial of the protest specifying the two taxes was made on the merits and it would thus have been futile for Warren to file a second drawback request specifying HMT and ET. Warren, at 1373. Although the two taxes were omitted from the original request for drawback, they were clearly raised in the protest and that was enough. Id. According to the court, Warren did not need to further exhaust administrative remedies and thus there was an actual controversy ripe for judicial review. Id., at 1373. Warren moved for summary judgment. The Court of International Trade then treated the government’s arguments about the lack of merit of Warren’s refund action as a cross motion for summary judgment and granted it. Id. at 1369. The court held that Warren’s claims for drawback of HMTs and ETs were precluded by Tex-port. Id. With respect to the HMT, the court rejected Warren’s argument that liability for HMT has the required “substantial nexus” to the act of importation simply because it has a nexus to the act of exportation for purposes of the Export Clause of the United States Constitution, citing Tex-port’s specific holding that HMTs were not eligible for drawback. Id. at 1372. Finally, the court also concluded that Warren’s argument that the HMT should be deemed a duty instead of a tax for drawback purposes was irrelevant as the “because of ... importation” requirement of 19 U.S.C. § 1313(j) applies equally to taxes and duties and therefore whether" }, { "docid": "16379881", "title": "", "text": "MICHEL, Circuit Judge. Plaintiff-Appellant George E. Warren Corporation (“Warren”) appeals the decision of the United States Court of International Trade granting summary judgment to the government in this civil action contesting the denial of Warren’s protest. The court held that Harbor Maintenance Taxes (“HMTs”) and Environmental Taxes (“ETs”) paid by Warren on various imported petroleum products were ineligible for drawback refunds. George E. Warren Corp. v. United States, 201 F.Supp.2d 1366 (Ct. Int’l 2002). Despite the government’s argument about prematurity and failure to exhaust administrative remedies, we hold the Court of International Trade did have jurisdiction, because the action contested denial of a protest concerning drawback for the two taxes. Further, the doctrine of futility excused further resort to administrative remedies. Because Texport Oil Co. v. United States, 185 F.3d 1291 (Fed.Cir.1999), held HMTs are not imposed “because of ... importation,” as is required for drawback by 19 U.S.C. § 1313, we affirm as to that tax. Applying to the ETs the principle of Texport that to be eligible for drawback a tax must discriminate against imports as compared to exports or domestic shipments, we hold them also not based on importation because these taxes apply equally to both domestic and imported petroleum products. We therefore affirm as to them as well. BACKGROUND Warren imported petroleum products on three different occasions from December 1995 to January 1996, paying regular customs duties and HMT on each occasion, and also paying ET on two of the three occasions. Subsequently, Warren exported petroleum products that were “commercially interchangeable” with the imported merchandise, a statutory prerequisite for “drawback” refunds. Based on the exportation, on July 15, 1996, Warren submitted drawback claims to the United States Customs Service (“Customs”) requesting refund of the charges paid. On October 4, 1996, Customs “liquidated” the drawback entries and allowed a 99% drawback refund of the “Column 1 customs duties” pursuant to 19 U.S.C. § 1313(p). On January 3, 1997, Warren protested Customs’ decision “to refuse to grant drawback of the HMT and ET paid in connection with the imported merchandise” and on February 26, 1997, Customs denied Warren’s" }, { "docid": "13468386", "title": "", "text": "that regulation, within the acknowledged power of Congress to enact, may affect the ports of one State more than those of another, cannot be construed as a violation of [the Port Preference Clause].”). The ultimate question, therefore, is not whether the Act results in a preference, but whether Congress explicitly discriminated against a particular state. Because Amoco failed to identify any particular state against which Congress intentionally discriminated, this court holds that the HMT does not violate the Port Preference Clause. The motion to dismiss is granted. Amoco claims 28 U.S.C. § 1581(i) jurisdiction for its few entries of imports into a foreign trade zone. This issue was not adequately briefed by the parties. The Government, however, does not challenge that jursidiction is proper under § 1581. As the court is denying relief on the merits, it does not resolve which subsection of § 1581 applies to such entries. Harbor Maintenance Revenue Act of 1986 (“HMRA”), EL. 99-662, Title XIV § 1402(a), 100 Stat. 4266 (1986). Amoco suggests that the Supreme Court, in United States v. U.S. Shoe Corp., 523 U.S. 360 (1998), held that the HMT is a general revenue-raising tax, not a fee for port maintenance. This contention is misplaced. That the HMT does not meet the strict requirement for a “user fee” pursuant to Export Clause jurisprudence does not alter the purpose or the function of the HMT in general. The HMT has been and continues to be a ftmding mechanism for harbor maintenance. Defendant does not dispute that Amoco has standing to raise a constitutional claim under both clauses. As relief is not granted, it is not necessary to explore this issue further. The court has since determined that the HMT on passenger services is unconstitutional, see Carnival Cruise Lines, Inc. v. United States, No. 93-10-00691, 1998 WL 299348, at *3 (Ct. Int’l Trade June 2, 1998) (appeal pending); however, the basic premise that the HMT on exports is severable from the remaining provisions of the HMT is unchanged. The severability clause of the WRDA provides: “If any provision of this Act, or the application of" }, { "docid": "22257164", "title": "", "text": "that § 4462(f)(3) was enacted as a counterpart to § 4462(f)(1) ‘so that the administrative and enforcement provisions of only the customs statutes, and not the tax laws, would apply to the HMT. See id. at 6715. As noted above, the administrative provisions of the customs laws include interest provisions. Because Congress did not specifically exclude interest provisions from “administrative and enforcement provisions” with respect to § 4462(f)(1), we must conclude that the interest provisions of the customs laws, and not the tax laws, apply to the HMT. 2. Having concluded that the HMT is to be treated as a customs duty for administrative and enforcement purposes, we look to the customs statutes for an express authorization of interest. Two provisions, 28 U.S.C. § 2644 and 19 U.S.C. § 1505(c), were raised before the Court of International Trade and by amici on appeal. We agree with the Court of International Trade that these customs provisions do not provide for interest on HMT refunds on the facts of this case. See U.S. Shoe, 20 Ct. Int’l Trade at 208-09. 28 U.S.C. § 2644 permits a judicial award of interest upon a judgment in a civil action brought pursuant to 19 U.S.C. § 1515 to contest the denial of an administrative protest. Appellee, however, did not pursue a refund of HMT payments through a customs protest. Indeed, in the earlier test case, the Court of International Trade had jurisdiction over the constitutional challenge to the HMT under 28 U.S.C. § 1581(i), the residual jurisdiction provision, and not under 28 U.S.C. § 1581(a), the provision that gives the Court of International Trade jurisdiction over actions filed under 19 U.S.C. § 1515. See U.S. Shoe, 528 U.S. at 366, 118 S.Ct. 1290. Because appellee did not file an administrative protest and did not contest the denial of such a protest, appellee is not entitled to interest under 28 U.S.C. § 2644. The customs laws also provide for pre-judgment interest on certain excess duties paid to Customs. Specifically, “[i]nterest on excess moneys deposited shall accrue ... from the date the importer of record deposits estimated" }, { "docid": "22257148", "title": "", "text": "PLAGER, Circuit Judge. The United States (“the Government”) appeals a judgment of the United States Court of International Trade, which awarded interest on refunds of the Harbor Maintenance Tax (“HMT”). The Supreme Court had earlier held that the HMT, as applied to exports, violates the Export Clause of the United States Constitution, and cannot be lawfully collected. This case was filed to test whether the Government is obligated by law to pay interest on these refunds. The Court of International Trade held that appellee may recover interest on refunds of HMT payments resulting from the Supreme Court’s decision. The trial court adjudged that 28 U.S.C. § 2411, which provides for post-judgment interest oh tax refunds, applies. We conclude that neither § 2411 nor any other statutory provision provides the necessary authorization for an award of interest to appellee on its HMT refunds. The judgment of the trial court is reversed. BACKGROUND The HMT, enacted by Congress as part of the Water Resources Development Act of 1986, 26 U.S.C. § 4461-62 (1994), is an ad valorem tax imposed on shipments of commercial cargo which pass through the country’s ports. Several thousand exporters challenged the constitutionality of the HMT as applied to exporters. In a test case, a three-judge panel of the Court of International Trade held that the HMT violates the Export Clause of the United States Constitution. See United States Shoe Corp. v. United States, 907 F.Supp. 408 (1996). This decision was affirmed by a five-judge panel of this court, see United States Shoe Corp. v. United States, 114 F.3d 1564 (Fed.Cir.1997), which decision was affirmed by the Supreme Court, see United States v. United States Shoe Corp., 523 U.S. 360, 118 S.Ct. 1290, 140 L.Ed.2d 453 (1998). In the course of the initial litigation before the Court of International Trade, that court issued an Order declaring that the plaintiff was entitled to a refund “together with interest and costs as provided by law.” United States Shoe Corp. v. United States, 924 F.Supp. 1191, 1191 (Ct. Int’l Trade 1995). Subsequently the court determined that the question of interest on the" }, { "docid": "13468369", "title": "", "text": "Opinion Restani, Judge: This matter is before the court on Defendant’s Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted pursuant to USCIT R. 12(b)(5). In this action, Plaintiff challenges the constitutionality of the Harbor Maintenance Tax (“HMT”), established by 26 U.S.C. §§ 4461, 4462 (1994), on its imports into the United States. I. Jurisdiction This court has jurisdiction pursuant to 28 U.S.C. § 1581(a). See Thomson Consumer Elecs. v. United States, No. 95-03-00277-S, slip op. 99-84, at 4-5 (Ct. Int’l Trade Aug. 17, 1999). II. Standard of Review On a motion to dismiss for failure to state a claim, factual allegations made in the complaint are assumed to be true and all inferences are drawn in favor of the plaintiff. See, e.g., Mitchell Arms, Inc. v. United States, 7 F.3d 212, 215 (Fed. Cir. 1993). Dismissal is proper only “where it appears beyond doubt that plaintiff can prove no set of facts which would entitle him to relief.” Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1565 (Fed. Cir. 1988). III. Background The HMT is an ad valorem tax on commercial cargo involved in “any port use,” including imports. See 26 U.S.C. § 4461(a) (1996). The HMT is contained in Title XIV of the Water Resources Development Act of 1986 (“WRDA” or “Act”), Pub.L. No. 99-662, 100 Stat. 4082 (1986). The HMT was intended to finance the general maintenance of U.S. ports. S. Rep. No. 99-126, at 9-10 (1985), reprinted in 1986 U.S.C.C.A.N. 6639, 6646-47. Plaintiff Amoco Oil Company (“Amoco”) imports goods by sea and alleges that, between 1993 and 1995, it made HMT payments upon imports in excess of $1,000,000. Amoco claims that the HMT on imports, 26 U.S.C. § 4461(c)(1)(A), is unconstitutional in light of the Supreme Court’s decision in United States v. U.S. Shoe Corp., 523 U.S. 360 (1998), aff’g 114 F.3d 1564 (Fed. Cir. 1997), aff’g 19 CIT 1284, 907 F. Supp. 408 (1995). In U.S. Shoe, 523 U.S. at 370, the Supreme Court held that the export provision of the HMT, 26 U.S.C. § 4461(c)(1)(B), violates the Export" }, { "docid": "16379888", "title": "", "text": "denial of a protest for purposes of jurisdiction. That Warren could have filed new, independent requests for drawback of HMTs and ETs because of an extended time-window does not mean that it had to do so despite Customs having already ruled on the merits. When the government argues that a new filing by Warren would not have been futile, it confuses administrative futility with time bars. Futility occurs where the filing party already knows that the agency would deny its claim because the agency has already done so. Parties are not required to perform useless acts to exhaust administrative remedies. See Thomson Consumer Elecs., Inc. v. United States, 247 F.3d 1210, 1212, 1214-15 (Fed.Cir.2001) (explaining generally the purpose of requiring exhaustion of administrative remedies and holding specifically that a protest is not required for the Court of International Trade to have jurisdiction over civil refund actions in which a protest to Customs would be futile because of Customs’ lack of authority over the subject matter). We, thus, hold that the Court of International Trade correctly concluded that under § 1581(a) it had jurisdiction over Warren’s civil action contesting Customs’ denial of Warren’s protest. II. Harbor Maintenance Tax Without doubt the Court of International Trade correctly interpreted Tex-port as ruling HMTs ineligible for drawback under 19 U.S.C. § 1313(j)(2); indeed that is the decision’s express holding. Warren argues, however, that Texport was incorrectly decided because it is inconsistent with certain legislative history. In the alternative, Warren maintains that under a correct construction of 19 U.S.C. § 1313(j)(2), HMT and ET qualify for drawback because, Warren asserts, both are in fact imposed “because of importation.” We cannot simply overrule the Texport decision, even if we were persuaded (which we are not) that it is appropriate; to overrule a precedent, the court must rule en banc. See Newell Cos. v. Kenney Mfg. Co., 864 F.2d 757, 765 (Fed. Cir.1988) (“This court has adopted the rule that prior decisions of a panel of the court are binding precedent on subsequent panels unless and until overturned in banc.”). We assume that pursuant to Federal Circuit" }, { "docid": "13418586", "title": "", "text": "of a liquidation decision is filed and denied, the court has jurisdiction pursuant to 28 U.S.C. § 1581(a) over any action challenging the protest denial. Thomson’s HMT payments on imports were subject to a liquidation which was not protested. The liquidation decision is placed within the jurisdiction of the Secretary of the Treasury pursuant to 26 U.S.C. § 4462(f)(1), as if the HMT were a customs duty. Accordingly, the court lacks jurisdiction under 28 U.S.C. § 1581(a). Thomson, however, alleges jurisdiction under 28 U.S.C. § 1581(i), the court’s residual jurisdiction provision. Section 1581(i) jurisdiction is available only if jurisdiction is not available under any other provision of 28 U.S.C. § 1581, or if relief under such other provision would be “mani festly inadequate.” Miller, 824 F.2d at 963; Cane Sugar Refiners’, 683 F.2d 399, 402 n. 5. Thompson argues that 28 U.S.C. § 1581(a) was never an appropriate vehicle for this constitutional challenge to the viability of HMT on imports, thus 28 U.S.C. § 1581(i) residual jurisdiction applies. The courts, however, have long recognized that constitutional challenges to liquidation decisions may be made by way of protest and, therefore, 28 U.S.C. § 1581(a) jurisdiction attaches. See C.J. Tower & Sons v. United States, 34 Cust. Ct. 95, 96, 135 F. Supp. 874, 880 (1955) (protest process provides remedy for allegedly unconstitutional taking resulting from “unreasonable and discriminatory” classification); see also Yoshida Int’l., Inc. v. United States, 73 Cust. Ct. 1, 378 F. Supp. 1155 (1974), rev’d on other grounds, 63 CCPA 15, 526 F.2d 560 (1975); Star-Kist Foods, Inc. v. United States, 47 CCPA 52, 275 F.2d 472 (1959); Marianao Sugar Trading Corp. v. United States, 29 Cust. Ct. 275, 283-86, C.D. 1481 (1952), aff’d, 41 CCPA 236, C.A.D. 557 (1954). Furthermore, cases plaintiff cites which forgive or deem satisfied exhaustion of administrative remedies when exhaustion is futile, are distinguishable. They address decision making outside Customs’ § 1514 jurisdiction and/or discretionary exhaustion principles. These cases do not stand for the proposition that applicable statutorily-mandated exhaustion requirements, such as those found in 19 U.S.C. § 1514(a), may be deemed futile. The" } ]

[ { "docid": "14833768", "title": "", "text": "v. Mannino, 635 F.2d 110, 116-17 (2d Cir.1980); United States v. Kirk, 534 F.2d 1262, 1277-78 (8th Cir.1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1174, 51 L.Ed.2d 581 and 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977). The evidence also indicates that Samuelson received substantial income from his drug related activities. We find no merit in Samuelson’s argument that the only evidence of his guilt consisted of hearsay statements which were contradicted by exculpatory hearsay, and that the evidence is therefore insufficient to uphold his convictions. In the first place, there was non-hearsay evidence, such as telephone records and testimony relating to Samuelson’s actions. Furthermore, “[i]t is for the jury to resolve questions about conflicting evidence and questions as to the weight and credibility of witnesses.” United States v. Todd, 657 F.2d 212, 216 (8th Cir.1981), cert. denied, 455 U.S. 926, 102 S.Ct. 1288, 71 L.Ed.2d 469 (1982). We are more troubled by Samuelson’s contention that the conspiracy and substantive drug charges are lesser included offenses of the continuing criminal enterprise, and that if his conviction for engaging in a continuing criminal enterprise is upheld, double jeopardy bars conviction and sentence on these other counts. We note that Samuelson apparently made no request for a lesser included offense instruction, although he did object at the sentencing hearing to the imposition of sentences for both conspiracy and continuing criminal enterprise. The Supreme Court indicated in Jeffers v. United States, 432 U.S. 137, 149-50, 97 S.Ct. 2207, 2215, 53 L.Ed.2d 168 (1977), that conspiracy is a lesser included offense of a continuing criminal enterprise. See United States v. Valenzuela, 596 F.2d 1361, 1364 (9th Cir.), cert. denied, 444 U.S. 865, 100 S.Ct. 136, 62 L.Ed.2d 88 (1977); United States v. Michel, 588 F.2d 986, 1000-01 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979). It appears from the record in the present case that the district court’s imposition of a ten year sentence for conspiracy might subject Samuelson to a period of imprisonment beyond the fifteen year sentence imposed for engaging in a continuing" } ]

[ { "docid": "4225325", "title": "", "text": "Cir.1983); United States v. Samuelson, 697 F.2d 255, 259 (8th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 1314, 79 L.Ed.2d 711 (1984); United States v. Smith, 690 F.2d 748, 750 (9th Cir.1982), cert. denied, 460 U.S. 1041, 103 S.Ct. 1435, 75 L.Ed.2d 793 (1983); United States v. Lurz, 666 F.2d 69, 75-76 (4th Cir.1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874, 459 U.S. 843, 103 S.Ct. 95, 74 L.Ed.2d 1354 (1982); United States v. Michel, 588 F.2d 986,1001 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979). The Supreme Court indicated in Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) that section 846 is a lesser included offense of section 848. Id. at 144 & n. 9, 97 S.Ct. 2207, 53 L.Ed.2d 168. The Court stressed, however, that it was not necessary to reach the issue. The defendant had opposed efforts to try both section 846 and 848 charges in one proceeding because he desired to be tried separately from co-defendants. Addressing the defendant’s contention that the subsequent section 848 prosecution was precluded by Brown v. Ohio, the Court held that Brown did not apply because the defendant had opposed the consolidation of charges. The Court noted that exceptions to the double jeopardy rule against subsequent prosecution of a greater offense arise where elements of the greater crime have not occurred or cannot be discovered. Id. at 151-52, 97 S.Ct. at 2216. The Court created another exception where the defendant requests separate trials or opposes consolidation and does not raise the issue of the lesser included offense. Id. at 152, 97 S.Ct. at 2216. The Court analogized such a situation to continuing jeopardy where a case is appealed or a mistrial is declared at the defendant’s request. Id. There is no double jeopardy violation, the Court held, where the defendant “elects to have the two offenses tried separately and persuades the trial court to honor his election.” Id. Where the defendant is responsible for the successive prosecutions he waives his right against successive trials. Id." }, { "docid": "3674594", "title": "", "text": "F.2d 26, 32 (1st Cir.1981), cert, denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed.2d 445 (1982) (citing Jeffers for proposition that the legislative “history might suggest an intent not to punish for both the § 848 violation and the offenses used to prove that violation”); United States v. Barnes, 604 F.2d 121, 155-56 (2d Cir.1979), cert, denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980) (relying on Jeffers as authority against imposition of penalty for conspiracy on defendant given maximum sentence on § 848, but affirming additional sentence for substantive offenses); United States v. Valenzuela, 596 F.2d 1361, 1364-65 (9th Cir.), cert, denied, 444 U.S. 865, 100 S.Ct. 136, 62 L.Ed.2d 88 (1979) (rejecting argument that Jeffers requires court to vacate prison sentences for conspiracy and predicate offenses imposed on defendant who also received life imprisonment under § 848); United States v. Johnson, 575 F.2d 1347, 1354 (5th Cir.1978), cert, denied, 440 U.S. 907, 99 S.Ct. 1214, 59 L.Ed.2d 454 (1979) (citing Jeffers as authority against consecutive sentences on §§ 846 and 848, but affirming without discussion additional prison terms for substantive violations). . As part of an overall sentencing plan for the defendants in Busic, the district court distributed the heaviest penalties on the counts that were later reversed, and imposed lighter punishments on the other counts. We remanded for resentencing on the counts that were upheld, without limiting the trial judge to the prison terms he had originally assessed. Since the maximum penalty provided by statute on the surviving counts made it impossible for the sentence on remand to exceed the total previously imposed, we did not have to decide whether the new aggregate sentence may be greater than the original one. 639 F.2d at 953 n. 14." }, { "docid": "12424909", "title": "", "text": "and the Eleventh Circuit has held that drug conspiracy, as defined by 21 U.S.C. § 846 or § 963, is a lesser included offense of CCE, and that it is a violation of double jeopardy to prosecute a defendant for the greater offense of CCE following a conviction of the lesser included offense of conspiracy. In Jeffers, the Supreme Court was confronted with the question of whether or not conspiracy is a lesser included offense of CCE and if so, whether this relationship between the two offenses prohibited separate prosecutions for each offense. The Jeffers Court did not directly answer this question although it indicated that a section 846 offense is most likely a lesser included offense of 848. Since Jef-fers was decided, the former Fifth Circuit as well as the Eleventh Circuit have held that a section 846 offense is indeed a lesser included offense of section 848 offense: Although the facts in Jeffers made it unnecessary to settle definitively the issue of whether § 846 is a lesser included offense of § 848, [cite omitted] the Court’s discussion of the issue indicates that the question would be answered affirmatively because § 848 requires proof of an agreement among the persons involved in the continuing criminal enterprise and thus requires proof of every fact necessary to show a violation under § 848 [sic] as well as proof of several additional elements. United States v. Stricklin, 591 F.2d 1112, 1123 (5th Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979). A conspiracy is a lesser included offense of section 848 because the “in concert” requirement of § 848 has been interpreted to “encompass the agreement required to prove a [section 846] conspiracy.” United States v. Michel, 588 F.2d 986, 999 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979); United States v. Bollinger, 796 F.2d 1394, 1403 n. 4 (1986), opinion substituted in part on other grounds, 837 F.2d 436 (11th Cir.), cert. denied, 486 U.S. 1009, 108 S.Ct. 1737, 100 L.Ed.2d 200 (1988); United States v. Brantley, 733 F.2d 1429," }, { "docid": "16780506", "title": "", "text": "them. Accordingly, venue in the Southern District of Georgia was proper. III. SENTENCING Appellant Blackston argues that he was improperly convicted and sentenced on Counts II, III & V. Blackston was convicted on Count I of continuing criminal enterprise under 21 U.S.C.A. § 848, on Counts II & III of conspiracy to import marijuana and conspiracy to possess marijuana with intent to distribute under 21 U.S.C.A. § 846, and on Count V of possession of marijuana with intent to distribute under 21 U.S.C.A. § 841. He was sentenced on Count I to 25 years, on Count II to 5 years, on Count III to 15 years, and on Count V to 15 years. The sentences on Counts I, II, and III are concurrent to each other and consecutive to the sentence on Count V; thus, Blackston’s total sentence is 40 years. Counts II, III, and V were the predicate offenses for the § 848 conviction, which required, among other elements, proof of “a continuing series of violations” of the relevant subchapters of Title 21. 21 U.S.C.A. § 848(b)(2). This circuit interprets “a continuing series of violations” to mean three or more violations. United States v. Graziano, 710 F.2d 691, 697 n. 11 (11th Cir.1983); United States v. Phillips, 664 F.2d 971, 1013 (5th Cir.1981) (Unit B), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). Blackston contends that the § 846 conspiracy and § 841 possession counts are lesser-included offenses of the § 848 continuing criminal enterprise offense and that we must therefore vacate both the convictions and sentences of these lesser-included offenses under Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); United States v. Michel, 588 F.2d 986, 1000 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979); and United States v. Johnson, 575 F.2d 1347 (5th Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1214, 59 L.Ed.2d 454 (1979). The government concedes that the § 846 offenses merge with the § 848 offense. Therefore, we vacate the convictions and sentences on counts II and" }, { "docid": "3674591", "title": "", "text": "to life imprisonment, to a fine of not more than $200,000, and to the forfeiture prescribed in paragraph (2). (b) For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if— (1) he violates any provision of this sub-chapter or subchapter II of this chapter the punishment for which is a felony, and (2) such violation is a part of a continuing series of violations of this subchapter or sub-chapter II of this chapter— (A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and (B) from which such person obtains substantial income or resources.” Section 848(c) prohibits suspension of sentence, probation and parole. . Jeffers has often been cited inaccurately as holding that a conspiracy is a lesser included offense of a continuing criminal enterprise. See, e.g., United States v. Barnes, 604 F.2d 121, 156 (2d Cir.1979), cert, denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980). Some cases have even construed this purported holding as requiring that a conviction and sentence under section 846 must be set aside when the defendant is also found guilty at the same trial of violating section 848. See United States v. Smith, 690 F.2d 748, 750 (9th Cir.1982), cert. denied, — U.S. -, 103 S.Ct. 1435, 75 L.Ed.2d 793 (1983); United States v. Lurz, 666 F.2d 69, 75, 81 (4th Cir.1981), cert, denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982); United States v. Johnson, 575 F.2d 1347, 1354 (5th Cir. 1978), cert, denied, 440 U.S. 907, 99 S.Ct. 1214, 59 L.Ed.2d 454 (1979). In these three cases, the government conceded that this interpretation of Jeffers was correct. . The trial judge charged the jury on Count Six that the government must prove defendant committed three or more of the offenses charged in Counts Two, Three, Four or Five as part of a continuing series of violations of the federal drug laws. Since defendant was found" }, { "docid": "4430383", "title": "", "text": "1012; Elliott, at 902-3. In addition to proving the aforementioned elements, proof of a RICO conspiracy requires the existence of an agreement. An agreement can be shown if “the defendant ... objectively manifested an agreement to participate directly or indirectly in the affairs of an enterprise through the commission of two or more predicate crimes.” Continuing Criminal Enterprise The government, in order to prove a continuing criminal enterprise in violation of 21 U.S.C. § 848, must show that the defendant: 1) engaged in a continuing series of federal drug felony violations; 2) that were undertaken in concert with five or more persons; 3) with respect to whom he occupied a position of organizer, supervisor or some other managerial status; and 4) from which defendant had obtained substantial income or resources. United States v. Michel, 588 F.2d 986, 1000 n. 14 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979). The relationship requirement in a § 848 case is flexible. The defendant’s relationship with the five other individuals need not exist at the same moment in time. There can exist separate, individual relations with the five persons. United States v. Phillips, supra. And, the five individuals need not act at the same time. United States v. Bolts, 558 F.2d 316, 320-21 (5th Cir.), cert. denied, 439 U.S. 898, 99 S.Ct. 262, 58 L.Ed.2d 246 (1977). The continuing series element in a continuing criminal enterprise is established by proof of three or more related narcotics violations. United States v. Valenzuela, 596 F.2d 1361, 1367 (9th Cir.), cert. denied, 444 U.S. 865, 100 S.Ct. 136, 62 L.Ed.2d 88 (1979); United States v. Johnson, 575 F.2d 1347, 1357 (5th Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1214, 59 L.Ed.2d 454 (1979). The continuing criminal enterprise law is a conspiracy statute of unique proportions. As the Supreme Court recognized in Jeffers v. United States, 432 U.S. 137, 149, 97 S.Ct. 2207, 2215, 53 L.Ed.2d 168 (1977), a § 848 case requires proof of an agreement and in that respect it is indistinguishable from a standard conspiracy statute. However, unlike" }, { "docid": "15963611", "title": "", "text": "a separate conviction. Two Second Circuit decisions hold that when a defendant is convicted of a lesser included offense, the proper course of action is to vacate the conviction as well as the sentence. United States v. Rosenthal, 454 F.2d 1252, 1255 (2d Cir.), cert. denied, 406 U.S. 931, 92 S.Ct. 1801, 32 L.Ed.2d 134 (1972); United States v. Slutsky, 487 F.2d 832 (2d Cir.1973), cert. denied, 416 U.S. 937, 94 S.Ct. 1937, 40 L.Ed.2d 287 (1974). Decisions by the Fifth, Seventh, and Ninth Circuits are in accord. See e.g., United States v. Jefferson, 714 F.2d 689 (7th Cir.1983); United States v. Smith, 690 F.2d 748 (9th Cir.1982), cert. denied, 460 U.S. 1041, 103 S.Ct. 1435, 75 L.Ed.2d 793 (1983); United States v. Buckley, 586 F.2d 498 (5th Cir.1978), cert. denied, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 242 (1979); United States v. Johnson, 575 F.2d 1347 (5th Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1214, 59 L.Ed.2d 454 (1979). The rationale for vacating a conviction as well as the sentence is that a conviction alone — even without a sentence — may entail adverse “collateral consequences.” See Rosenthal, 454 F.2d at 1255 n. 2; Buckley, 586 F.2d at 504-05. However, in two of its more recent decisions, this Court vacated only the sentence on the lesser included offense but allowed the conviction to remain undisturbed. United States v. Sperling, 560 F.2d 1050 (2d Cir.1977); United States v. Mourad, 729 F.2d 195, 202 (2d Cir.), petition for cert. filed, 52 U.S.L.W. 3922 (U.S. June 26,1984) (No. 83-2067) (“We therefore vacate the sentences imposed on Mourad on the conspiracy counts and remand his case solely for the purpose of reconsideration of his 848 sentence.”) It is to be noted, however, that in Sper-ling, only the sentencing issue was presented by the defendant; he did not seek to have his conviction on the lesser offense vacated. This Court remanded the case exclusively for sentencing purposes, noting that the conviction on the conspiracy count “remains unaffected.” 560 F.2d at 1060. Similarly, in Mourad, the Court vacated only the sentence but let" }, { "docid": "16780533", "title": "", "text": "three counts, we need not decide an open question in this circuit, namely, whether an overt act in violation of the drug laws can be a predicate offense under § 848 when it is not the basis for a separate count and conviction. See United States v. Raffone, 693 F.2d 1343, 1349 n. 12 (11th Cir.1982) (leaving question open), cert. denied, — U.S. -, 103 S.Ct. 2094, 77 L.Ed.2d 303 (1983); United States v. Michel, 588 F.2d 986, 1000 n. 15 (5th Cir.) (same), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979). We note, however, that United States v. Johnson, 575 F.2d 1347, 1357 (5th Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1214, 59 L.Ed.2d 454 (1979), indicates that such overt acts can constitute § 848 predicate offenses. We necessarily decide another question previously undecided in this circuit, namely, whether conspiracies under 21 U.S.C.A. § 846 can be predicate offenses under § 848. See United States v. Raffone, 693 F.2d at 1349 n. 12 (leaving question open); United States v. Michel, 588 F.2d at 1001 (same). We now hold that they can be. See United States v. Middleton, 673 F.2d 31, 33 (1st Cir.1982). Cf. United States v. Stricklin, 591 F.2d 1112, 1124 (5th Cir.) (indicating that conspiracy offense may be \"part of the foundation of the § 848 charge”), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979). But see United States v. Jefferson, 714 F.2d 689, 702 n. 27 (7th Cir.1983) (only substantive offenses may serve as § 848 predicate offenses). . The law in this circuit is clear that both the sentences and convictions must be vacated under these circumstances. United States v. Michel, 588 F.2d at 1001; United States v. Buckley, 586 F.2d 498, 504-05 (5th Cir.1978), cert. denied, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 242 (1979). Because Blackston’s § 846 sentences are concurrent with his § 848 sentence, vacating his § 846 sentences does not reduce his total sentence. . We note that Phillips and Garrett are inconsistent with a First Circuit case disallowing subsequent" }, { "docid": "23704701", "title": "", "text": "as well as the plain meaning of the words “in concert with” convince us that § 848 was meant to cover large-scale, continuing conspiracies to violate the drug laws. The provision as it developed through Congressional debate clearly contemplated sophisticated criminal drug distribution operations. We reject the idea that such an operation could exist without “agreement” between at least the organizer and the individuals supervised sufficient to satisfy the definition of conspiracy under § 846. Consequently, we conclude that § 846 was intended by Congress to be a lesser-included offense of § 848. Accord, United States v. Sperling, 560 F.2d 1050, 1055 (2d Cir.1977) (“We think it is too plain for cavil that to act ‘in concert’ to violate the law necessarily includes conspiracy to do so, and, hence, to prove the continuing criminal enterprise charge is to prove the conspiracy.”) See also United States v. Samuelson, 697 F.2d 255, 259 (8th Cir.1983); United States v. Lurz, 666 F.2d 69, 75 (4th Cir.), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1981), and United States v. Michel, 588 F.2d 986, 1001 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979) (citing Jeffers for the proposition that § 846 is a lesser-included offense of § 848). For these reasons, we hold that § 846 is a lesser-included offense of § 848. Appel lant’s § 846 conviction and sentence will be vacated. C. Finally, appellant contends that the Double Jeopardy Clause was violated when she was recalled by the trial judge and resentenced three hours after her original sentencing. Although no objection was made by defense counsel at the time, appellant’s counsel on appeal urges that the re-sentencing was improper and constitutes plain error. It is well settled that the Double Jeopardy Clause does not prohibit resentencing to correct a sentence entered illegally or erroneously where a defendant has not yet commenced service on his sentence. E.g., United States v. Davidson, 597 F.2d 230, 233 (10th Cir.), cert. denied, 444 U.S. 861, 100 S.Ct. 127, 62 L.Ed.2d 83 (1979); United States v. DiLorenzo, 429" }, { "docid": "18848501", "title": "", "text": "enumerated in section 2516 of this chapter.... In examining the enumerated offenses in § 2516, the Court notes that although most of the offenses are specifically named and cited, the offenses relating to narcotics violations are broadly and generally described: (e) any offense involving fraud connected with a case under title 11 or the manufacture, importation, receiving, concealment, buying, selling or otherwise dealing in narcotic drugs, marihuana, or other dangerous drugs, punishable under any law of the United States; 18 U.S.C. § 2516(l)(e). Congress thus recognized the closely related nature of the various narcotics offenses. Reference to narcotics related offenses in an application should be examined in the context of this broad Congressional reference to such narcotics offenses. . The elements of a § 848 offense are (1) violation of certain federal narcotics offenses (including 21 U.S.C. §§ 841(a)(1), 846), (2) said violation being part of a continuing series of such violations, (3) undertaken by the violator in concert with five or more other persons, (4) with respect to whom the violator occupies a position of organizer, a supervisory position, or any other position of management, and (5) from which the violator obtains substantial income or resources. See United States v. Michel, 588 F.2d 986, 1000 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979); United States v. Johnson, 575 F.2d 1347 (5th Cir. 1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1214, 59 L.Ed.2d 454 (1979); United States v. Sperling, 506 F.2d 1323, 1344 (2d Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975). A reading of the affidavit of Agent Copus, incorporated in the application and referred to in the authorization order, reveals that probable cause is established as to each of these elements. The affidavit describes a violation of 21 U.S.C. § 848 in all but name. . The fact that in this case the affidavit incorporated in the application particularly described a violation of 21 U.S.C. § 848 and established probable cause relating thereto, distinguishes this case from the Brodson and Marion cases relied on by" }, { "docid": "3674592", "title": "", "text": "100 S.Ct. 1833, 64 L.Ed.2d 260 (1980). Some cases have even construed this purported holding as requiring that a conviction and sentence under section 846 must be set aside when the defendant is also found guilty at the same trial of violating section 848. See United States v. Smith, 690 F.2d 748, 750 (9th Cir.1982), cert. denied, — U.S. -, 103 S.Ct. 1435, 75 L.Ed.2d 793 (1983); United States v. Lurz, 666 F.2d 69, 75, 81 (4th Cir.1981), cert, denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982); United States v. Johnson, 575 F.2d 1347, 1354 (5th Cir. 1978), cert, denied, 440 U.S. 907, 99 S.Ct. 1214, 59 L.Ed.2d 454 (1979). In these three cases, the government conceded that this interpretation of Jeffers was correct. . The trial judge charged the jury on Count Six that the government must prove defendant committed three or more of the offenses charged in Counts Two, Three, Four or Five as part of a continuing series of violations of the federal drug laws. Since defendant was found guilty on all of these counts, we need not decide whether conviction on three or more substantive offenses is necessary for conviction under § 848. Compare cases collected in United States v. Lurz, 666 F.2d 69, 78 (4th Cir.), cert, denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982), with those collected in United States v. Michel, 588 F.2d 986, 1000 n. 15 (5th Cir.), cert, denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979). . See, e.g., United States v. Smith, 690 F.2d 748, 750 (9th Cir.1982), cert, denied,-U.S. -, 103 S.Ct. 1435, 75 L.Ed.2d 793 (1983) (relying on Jeffers to reverse conviction under § 846 as lesser included offense of § 848; but affirming without discussion conviction on substantive counts); United States v. Chagra, 669 F.2d 241, 261-62 n. 30 (5th Cir.), cert, denied, - U.S. -, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982) (vacating § 841 fine as cumulative to § 848 fine, as required by “[t]he discussion of Congressional intent in Jeffers”); United States v. Chagra, 653" }, { "docid": "22954917", "title": "", "text": "U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); United States v. Hawkins, 658 F.2d 279, 287-88 (5th Cir.1981); United States v. Peacock, 654 F.2d 339, 348-49 (5th Cir. 1981), cert. denied, 464 U.S. 965, 104 S.Ct. 404, 78 L.Ed.2d 344 (1983). Furthermore, as RICO is not a lesser included offense of CCE, a court may also impose consecutive sentences for these convictions. Phillips, 664 F.2d at 1013. Bonnie then contends that his § 846 conspiracy conviction and sentence cannot stand because conspiracy is a lesser included offense of CCE. Although we have already reversed his conspiracy conviction, we note for purposes of retrial that, with this contention, we agree. The plurality opinion in Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), indicated that, while a defendant can be indicted for the two offenses, he may not be sentenced for them both. In Jeffers, the Supreme Court reduced the defendant’s separate fines for conspiracy and CCE to $100,000, the maximum allowed for CCE. Id. at 157-58, 97 S.Ct. at 2220. This result is consistent with our cases holding that a § 846 conspiracy is a lesser included offense of CCE. See, e.g., United States v. Stricklin, 591 F.2d 1112, 1123 (5th Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979); see also United States v. Michel, 588 F.2d 986, 1000-01 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979). Because of his CCE conviction, Bonnie may not be retried on Count 1. Bonnie next claims that the jury instruction on murder, one of several uncharged RICO predicate offenses, was defective. His first claim — that the instruction failed to include a Texas procedural rule requiring independent corroboration of an accomplice’s testimony — is meritless. “ ‘[T]he reference to state law in the [RICO] statute is for the purpose of defining the conduct prohibited’ and is not meant to incorporate the state ... procedural rules.” United States v. Brown, 555 F.2d 407, 418 n. 22 (5th Cir.1977), cert. denied, 435 U.S. 904, 98 S.Ct. 1448, 55" }, { "docid": "3674593", "title": "", "text": "guilty on all of these counts, we need not decide whether conviction on three or more substantive offenses is necessary for conviction under § 848. Compare cases collected in United States v. Lurz, 666 F.2d 69, 78 (4th Cir.), cert, denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982), with those collected in United States v. Michel, 588 F.2d 986, 1000 n. 15 (5th Cir.), cert, denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979). . See, e.g., United States v. Smith, 690 F.2d 748, 750 (9th Cir.1982), cert, denied,-U.S. -, 103 S.Ct. 1435, 75 L.Ed.2d 793 (1983) (relying on Jeffers to reverse conviction under § 846 as lesser included offense of § 848; but affirming without discussion conviction on substantive counts); United States v. Chagra, 669 F.2d 241, 261-62 n. 30 (5th Cir.), cert, denied, - U.S. -, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982) (vacating § 841 fine as cumulative to § 848 fine, as required by “[t]he discussion of Congressional intent in Jeffers”); United States v. Chagra, 653 F.2d 26, 32 (1st Cir.1981), cert, denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed.2d 445 (1982) (citing Jeffers for proposition that the legislative “history might suggest an intent not to punish for both the § 848 violation and the offenses used to prove that violation”); United States v. Barnes, 604 F.2d 121, 155-56 (2d Cir.1979), cert, denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980) (relying on Jeffers as authority against imposition of penalty for conspiracy on defendant given maximum sentence on § 848, but affirming additional sentence for substantive offenses); United States v. Valenzuela, 596 F.2d 1361, 1364-65 (9th Cir.), cert, denied, 444 U.S. 865, 100 S.Ct. 136, 62 L.Ed.2d 88 (1979) (rejecting argument that Jeffers requires court to vacate prison sentences for conspiracy and predicate offenses imposed on defendant who also received life imprisonment under § 848); United States v. Johnson, 575 F.2d 1347, 1354 (5th Cir.1978), cert, denied, 440 U.S. 907, 99 S.Ct. 1214, 59 L.Ed.2d 454 (1979) (citing Jeffers as authority against consecutive sentences on §§ 846 and" }, { "docid": "18576574", "title": "", "text": "-, 104 S.Ct. 1910, 80 L.Ed.2d 459 (1984); United States v. Samuelson, 697 F.2d 255, 259 (8 Cir.1983), cert. denied, 465 U.S. 1038, 104 S.Ct. 1314, 79 L.Ed.2d 711 (1984); United States v. Losada, 674 F.2d 167, 174 n. 4 (2 Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982); United States v. Phillips, 664 F.2d 971, 1013 (5 Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); United States v. Chagra, 653 F.2d 26, 27-28 (1 Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed.2d 445 (1982); United States v. Johnson, 575 F.2d 1347 (5 Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454 (1979). . United States v. Webster, 639 F.2d 174, 181 (4 Cir.1981), modified on other grounds, 669 F.2d 185 (4 Cir.), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 455 (1982). . E.g., United States v. Sterling, 742 F.2d 521, 526-27 (9 Cir.1984), cert. denied, - U.S. -, 105 S.Ct. 2322, 85 L.Ed.2d 840 (1985); United States v. Brantley, 733 F.2d 1429, 1436-37 (11 Cir.1984), cert. denied, - U.S. -, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985). . We have previously stated in dicta that a § 846 conspiracy may not be used to prove the predicate violation required by § 848(b)(1), Lurz, supra, 666 F.2d at 76; accord United States v. Jefferson, 714 F.2d 689, 702 n. 27 (7 Cir.1983); but see United States v. Young, 745 F.2d 733, 748-52 (2 Cir.1984), cert. denied, - U.S. -, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985); United States v. Brantley, 733 F.2d 1429, 1436 n. 14 (11 Cir.1984), cert. denied, - U.S. -, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985); United States v. Middleton, 673 F.2d 31, 33 (1 Cir.1982); cf. United States v. Michel, 588 F.2d 986, 1000-01 (5 Cir.) (no opinion on issue), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979), but we have also held that a distinct conspiracy may be used to prove the \"series” and other requirements of § 848(b)(2). Lurz at" }, { "docid": "16780507", "title": "", "text": "U.S.C.A. § 848(b)(2). This circuit interprets “a continuing series of violations” to mean three or more violations. United States v. Graziano, 710 F.2d 691, 697 n. 11 (11th Cir.1983); United States v. Phillips, 664 F.2d 971, 1013 (5th Cir.1981) (Unit B), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). Blackston contends that the § 846 conspiracy and § 841 possession counts are lesser-included offenses of the § 848 continuing criminal enterprise offense and that we must therefore vacate both the convictions and sentences of these lesser-included offenses under Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); United States v. Michel, 588 F.2d 986, 1000 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979); and United States v. Johnson, 575 F.2d 1347 (5th Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1214, 59 L.Ed.2d 454 (1979). The government concedes that the § 846 offenses merge with the § 848 offense. Therefore, we vacate the convictions and sentences on counts II and III. Blackston’s argument that he cannot be cumulatively punished for the § 848 count and the underlying § 841 offense runs aground on the shoals of United States v. Phillips, 664 F.2d 971 (5th Cir.1981) (Unit B), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982), and United States v. Garrett, 727 F.2d 1003 (11th Cir.1984). Phillips and Garrett hold in a subsequent § 848 prosecution, double jeopardy does not prevent reliance upon a prior § 841 conviction as a predicate offense. Those cases hold essentially that the § 841 offense and the § 848 offense are distinct for double jeopardy purposes. See Garrett, 727 F.2d at 1009; Phillips, 664 F.2d at 1009. In light of the “basic design [of double jeopardy] as a bar against repeated attempts to convict,” United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), if successive prosecutions (involving of course cumulative punishment) are not barred, it follows logically that double jeopardy does not bar cumulative punishment in a single prosecution for §" }, { "docid": "9608661", "title": "", "text": "both a lesser and the greater offense, the Brown court held: As is invariably true of a greater and lesser included offense, the lesser offense ... requires no proof beyond that which is required for conviction of the greater____ The greater offense is therefore by definition the “same” for purposes of double jeopardy as any lesser offense included in it. Id. at 168, 97 S.Ct. at 2226-27. Accordingly, a lesser included offense is always the same offense for double jeopardy purposes. In Jeffers v. United States, 432 U.S. 137, 146 n. 11, 97 S.Ct. 2207, 2214 n. 11, 53 L.Ed.2d 168 (1977), the Supreme Court noted the “conceptual closeness” of 21 U.S.C. § 846 (conspiracy to violate the Controlled Substances Act) and 21 U.S.C. § 848 (CCE). The Court observed that, unlike a substantive drug felony, both a conspiracy conviction and a CCE conviction require proof of an agreement to violate the law. Since Jeffers was decided, both- the former Fifth Circuit and the Eleventh Circuit have held that § 846 is a lesser included offense of § 848. United States v. Stricklin, 591 F.2d 1112, 1123 (5th Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979); United States v. Bollinger, 796 F.2d 1394, 1403 n. 4 (1986), opinion substituted in part on other grounds, 837 F.2d 436 (11th Cir.), cert. denied, 486 U.S. 1009, 108 S.Ct. 1737, 100 L.Ed.2d 200 (1988); United States v. Brantley, 733 F.2d 1429, 1436 (11th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985). A § 846 conspiracy is a lesser included offense of § 848 because the “in concert” requirement of § 848 has been interpreted to “encompass the agreement required to prove a [section 846] conspiracy.” United States v. Michel, 588 F.2d 986, 999 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979). Therefore, “[a]ny section 846 conspiracy for which [the defendant] was subject to prior jeopardy cannot be used by the government in [a later] prosecution to satisfy the collaboration requirement of section 848.” United States v. Boldin," }, { "docid": "22191277", "title": "", "text": "person occupies a position of organizer, a supervisory position, or any other position of management, and (B) from which such person obtains substantial income or resources. As the statute has been construed by the fourth circuit, United States v. Lurz, 666 F.2d 69 (4th Cir.1981), cert, denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874, 457 U.S. 1136, 102 S.Ct. 2966, 73 L.Ed.2d 1354 (1982), and by Judge Sand below, its “elements are divided in two parts. First, it is necessary to prove the predicate felony violation [referred to in subsection (1) ] (element one) and second, the other elements [referred to in subsection (2)] must be proved.” United States v. Lurz, 666 F.2d at 76. With respect to the first of the statute’s “other elements”, the “continuing series of violations” required by subsection (b)(2), there is a consensus of authority that to establish a “series” the government must prove at least three felony violations. United States v. Losada, 674 F.2d 167, 174 n. 4 (2d Cir.), cert, denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982); United States v. Chagra, 653 F.2d 26, 27-28 (1st Cir.1981), cert., denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed.2d 445 (1982); see United States v. Graziano, 710 F.2d 691, 697 n. 11 (11th Cir.1983); United States v. Phillips, 664 F.2d 971, 1013 (5th Cir.1981), cert, denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); United States v. Valenzuela, 596 F.2d 1361, 1364-65 (9th Cir.), cert, denied, 444 U.S. 865, 100 S.Ct. 136, 62 L.Ed.2d 88 (1979). This does not necessarily mean, however, that the government must obtain convictions on a minimum of three felony violations to establish a continuing criminal enterprise. United States v. Lurz, 666 F.2d at 78; compare United States v. Gomberg, 715 F.2d 843, 850 n. 4 (3d Cir.1983) (unnecessary to reach the question); United States v. Michel, 588 F.2d 986, 1000 n. 15 (5th Cir.) (same), cert, denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1975). On a number of occasions, this court has affirmed § 848 convictions where the government" }, { "docid": "14568620", "title": "", "text": "less than five people. Courts considering the question have rejected Smith’s contention. For example, in United States v. Sperling, 506 F.2d 1323, 1344 (2d Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 103 (1975), the court stated: Sperling further argues that the evidence was insufficient to convict him under § 848 because it failed to show that five or more people were working in his narcotics business at the same moment. This argument misconstrues the statute. No such proof is required. As to this element of the offense, the statute requires only that the person charged must have been acting “in concert with five or more other persons” and as to them that he occupied “a position of organizer, a supervisory position, or any other position of management”. To the same effect: United States v. Mannino, 635 F.2d 110, 116-17 (2d Cir. 1980); United States v. Barnes, 604 F.2d 121, 157 (2d Cir. 1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980); United States v. Michel, 588 F.2d 986, 1000 n.14 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979); United States v. Bolts, 558 F.2d 316, 320-21 (5th Cir. 1977), cert. denied, 434 U.S. 930, 98 S.Ct. 417, 54 L.Ed.2d 290 (1977), 439 U.S. 898, 99 S.Ct. 262, 58 L.Ed.2d 246 (1978). We agree with these courts that it is not necessary for the government to show that the organizer worked with five or more persons at the same moment and reject Smith’s contention. 2. Smith contends and the government concedes that Smith’s conviction for conspiracy under 21 U.S.C. § 846 and for continuing criminal enterprise under 21 U.S.C. § 848 violates the double jeopardy clause under Jeffers v. United States, 432 U.S. 137, 147, 97 S.Ct. 2207, 2214, 53 L.Ed.2d 168 (1977). Judgment must then be reversed as to Count I, the lesser included offense of conspiracy. We shall not burden this opinion with a discussion of the many other assignments of error. They are discussed" }, { "docid": "4430384", "title": "", "text": "at the same moment in time. There can exist separate, individual relations with the five persons. United States v. Phillips, supra. And, the five individuals need not act at the same time. United States v. Bolts, 558 F.2d 316, 320-21 (5th Cir.), cert. denied, 439 U.S. 898, 99 S.Ct. 262, 58 L.Ed.2d 246 (1977). The continuing series element in a continuing criminal enterprise is established by proof of three or more related narcotics violations. United States v. Valenzuela, 596 F.2d 1361, 1367 (9th Cir.), cert. denied, 444 U.S. 865, 100 S.Ct. 136, 62 L.Ed.2d 88 (1979); United States v. Johnson, 575 F.2d 1347, 1357 (5th Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1214, 59 L.Ed.2d 454 (1979). The continuing criminal enterprise law is a conspiracy statute of unique proportions. As the Supreme Court recognized in Jeffers v. United States, 432 U.S. 137, 149, 97 S.Ct. 2207, 2215, 53 L.Ed.2d 168 (1977), a § 848 case requires proof of an agreement and in that respect it is indistinguishable from a standard conspiracy statute. However, unlike a typical conspiracy statute which proscribes an inchoate offense, § 848 requires proof of a substantive violation. United States v. Phillips, 664 F.2d 971 (5th Cir.1981). Finally, § 848, commonly referred to as the “Kingpin” statute, is directly aimed at the organizers and leaders of narcotics operations. United States v. Webster, 639 F.2d 174 (4th Cir. 1981), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 455 (1982). RICO and Continuing Criminal Enterprise Are Not Greater and Lesser Included Offenses. The differences between the RICO and the Continuing Criminal Enterprise statutes are readily apparent and support a finding that the offenses are separate and distinct for purposes of the double jeopardy clause. RICO encompasses any pattern of racketeering activity proscribed by 18 U.S.C. § 1961. Continuing Criminal Enterprise is limited solely to narcotics trafficking. RICO requires no minimum number of participants. A continuing criminal enterprise has an express requirement that at least five individuals be involved. RICO is not addressed to any specific level of organized crime figure. In fact, its breadth encompasses not" }, { "docid": "4225324", "title": "", "text": "offense and that he was subjected to successive prosecutions. The Government conceded at oral argument that conspiracy is a lesser included offense of continuing criminal enterprise. Other courts considering the issue have held that conspiracy is a lesser included offense of section 848. United States v. Brantley, 783 F.2d 1429, 1436-37 (11th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985), held that section 846 conspiracies were lesser included offenses of section 848 and merged into the greater offense, although substantive offenses did not. United States v. Mourad, 729 F.2d 195, 202-03 (2d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 180, 83 L.Ed.2d 114 (1985), also held that Congress did not intend to authorize cumulative punishment for both conspiracy and continuing criminal enterprise, but allowed cumulative, punishments for substantive counts and continuing criminal enterprise. The court vacated the sentence under section 846 and remanded the case to allow the district judge to resentence the defendant or enhance his sentence. See also United States v. Jefferson, 714 F.2d 689, 705 (7th Cir.1983); United States v. Samuelson, 697 F.2d 255, 259 (8th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 1314, 79 L.Ed.2d 711 (1984); United States v. Smith, 690 F.2d 748, 750 (9th Cir.1982), cert. denied, 460 U.S. 1041, 103 S.Ct. 1435, 75 L.Ed.2d 793 (1983); United States v. Lurz, 666 F.2d 69, 75-76 (4th Cir.1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874, 459 U.S. 843, 103 S.Ct. 95, 74 L.Ed.2d 1354 (1982); United States v. Michel, 588 F.2d 986,1001 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979). The Supreme Court indicated in Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) that section 846 is a lesser included offense of section 848. Id. at 144 & n. 9, 97 S.Ct. 2207, 53 L.Ed.2d 168. The Court stressed, however, that it was not necessary to reach the issue. The defendant had opposed efforts to try both section 846 and 848 charges in one proceeding because he desired to be tried separately from" } ]

[ { "docid": "16642206", "title": "", "text": "article, having a different character or name. The boot remains a boot and the leather strap remains a leather strap, even when used together. Further in the same opinion the Court of Appeals discusses the case of Columbia Shipbuilding Co. v. United States, 11 Ct. Cust. Appls. 281, T. D. 39085, involving a steam engine and a fan intended to be assembled and used together on a vessel. The combination of these two articles was held not to constitute an entirety, the court stating on page 546: * * *. In other words,' by assembly the fan did not merge with the engine nor the engine with the fan, so as to form a new or distinct article having a different character or name. In United States v. Kronfeld, Saunders, Inc., 20 C. C. P. A. 57, T. D. 45679, the court said (p. 60): * * * when two or more parts of an article are shipped together and are intended to be used together as one article, and by mere assembly they are made into one article, they shall be regarded as entireties for tariff purposes. The croquet sets before the court are not entireties for tariff purposes. The various items making up the set are each complete articles of commerce. They are not intended to be, nor have they been, joined together or merged so that their separate identities have been lost and a new and different article with a new name and use brought into being. The various items going to make up the croquet sets herein are separately dutiable. The bails and croquet mallets in each set are held properly dutiable at 20 per centum ad valorem under paragraph 1502 of the Tariff Act of 1930, as modified by the British Trade Agreement (T. D. 49753), and the balance of the merchandise imported is held properly dutiable at 30 per centum ad valorem under the same paragraph as assessed by the collector. To the extent indicated the protest is sustained; in all other respects and as to all other merchandise all the claims are overruled." } ]

[ { "docid": "22210708", "title": "", "text": "C. P. A. 281, T. D. 47330. Further, the court said— As a general proposition, therefore, articles are not regarded by the courts as entireties for dutiable purposes when there is no natural affinity in composition, and particularly where one of the articles is complete in all of its parts without regard to the article imported to be used with it. Obviously, the screws and hinges in controversy do not merge to form an article having a new name or use. The screws when affixed do not change the character of the hinges, which retain their original identity, and so do the screws, which are used merely as a means of fastening the hinges to doors or other surfaces. Moreover, as .disclosed by the stipulation of fact, “it is not necessary to use only screws as fastening devices for said hinges, but that nails, bolts or some similar fastening devices can be and are frequently used as said fastening devices.” In support of the collector’s classification of the imported articles, defendant cites the following cases, wherein certain commodities were held to be subject to duty as entireties: Artgift Corp. v. United States, 30 Cust. Ct. 372, Abstract 57135 — a metal statuette, securely affixed to a wooden base, with a glass dome placed over the statuette. Altman & Co. v. United States, 13 Ct. Cust. Appls. 315, T.D. 41232— corsets and lace trimmings, the trimmings being imported for the sole purpose of finishing and completing the corsets. United States v. Auto Import Co., 168 Fed. 242 — automobiles imported with the exact number of tires required for their use. L. Oppleman, Inc. v. United States, 73 Treas. Dec. 817, T. D. 49565— barometers and parts thereof, and barometer frames or cases therefor into the bases of which were fastened circular containers in the form of ships’ steering wheels for the purpose of holding the barometers in position, the frames or cases being regarded as essential to the proper functioning of the barometers. The factual circumstances of the four cases just cited differ from those in the instant case in such" }, { "docid": "16642203", "title": "", "text": "guards, and tennis nets” (italics mine). It may be assumed that the negotiators of the trade agreement had some reason for changing the aforesaid second section of paragraph 1502 and making eo nomine provisions therein for table-tennis bats and croquet mallets. We refer to these two items jointly as it is a matter of common knowledge that both table tennis (ping-pong) and croquet are played with miscellaneous equipment, the former with balls, bats, and a net with fittings to fasten it to a table, and croquet with a set consisting of balls, mallets, wickets, and posts, or with the elaborate type of set here before the court. There is nothing in the trade agreement to indicate that the eo nomine provisions appearing therein were intended to cover and apply only to table-tennis bats and croquet mallets imported separately and apart from the other items necessary to play either game. In the absence of some expressed provision indicating such intent, no such intent will be read into the agreement. The fact that the various articles constituting the set are packed together, imported together, and intended to be used for the single purpose of playing the game of croquet, does not of itself establish that these sets are entireties. The separate items going to make up the imported croquet sets were not in any way assembled so that each of the items became an essential part of a new article having a different name, character, and use. Each of the articles may be sold separately and has a separate dutiable status, and the whole is not an entirety. (Sheldon & Co. v. United States, 14 Ct. Cust. Appls. 108, 111, T. D. 41591.) In Lang Co. et al. v. United States, 15 Ct. Cust. Appls. 341, T. D. 42495, the merchandise involved was a tablecloth and napkins imported in sets. Each set consisted of a tablecloth and six napkins to match, packed together in a paper carton. They also were ordered and sold in sets. The court therein stated: * * *. In the instant case the tablecloth is complete without the" }, { "docid": "8166844", "title": "", "text": "Co. v. United States, 13 Ct. Cust. Appls. 315, T. D. 41232, is pertinent. In that case the court said: * * * that if an importer brings into the country, at the same time, certain parts, which are designed to form, when joined or attached together, a complete article of commerce, and when it is further shown that the importer intends to so use them, these parts will be considered for tariff purposes as entireties, even though they may be unattached or inclosed in separate packages, and even though said parts might have a commercial value and be salable separately. Applying that principle to the merchandise in question, it can be said that the wooden base, the metal figure, and the glass dome, “are designed to form, when joined or attached together, a complete article of commerce.” The sample before us, which is a potent witness • herein, supports this conclusion. Each of the components indicates clearly that all are designed to be and actually are used •together. The wooden base is made to be a stand to hold the metal figure and the glass dome. The metal figure, by its threaded projection, is clearly designed for use with this wooden base. The glass dome, in height and in- diameter, is in perfect proportion to be a covering for the statuette. It had no other known commercial use than as a case to complete this article. Any one of the components without both of the others would be commercially useless. All of the parts are essential to the commercial entity, i. e., a statuette of the “Infant of Prague.” Counsel for defendant, in their brief, have referred to several cases which involved the question of entireties and wherein the different parts of the imported merchandise were held to be separately classifiable. We have examined and carefully considered all of those cases and find them to be distinguishable from the present issue. ' On the basis of the present record, and following the Altman & Co. case, supra, we find these statuettes of the “Infant of Prague” to be classifiable" }, { "docid": "22210700", "title": "", "text": "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 court, be received into evidence as Plaintiff’s Exhibit 1, all of which were classified and assessed with duty as entireties as manufactures in chief value of metal, not specially provided for, with duty at 22% per cent ad valorem under paragraph 397, TariS Act of 1930, as modified by the President under the General Agreement on Tariffs and Trade, T. D. 51802. >}: ^ # ‡ ‡ ‡ # 2. * * * that said screws are ordinary wood screws of steel capable of use in any wooden surface and not necessarily with any particular article or surface. 3. That each hinge is designed for use 'and is capable of use only as a hinge; that each said hinge consists of two brass plated butts or wings fastened together with a round headed steel pin; that each butt or wing contains 3 holes therein through which holes each hinge is designed to be fastened as a hinge to two separate surfaces by means of screws, nails, bolts or similar fastening devices. 4. That it is" }, { "docid": "22210707", "title": "", "text": "365, T. D. 48212; Brach v. United States, Abstract 26145, and Fiver v. United States, T. D. 47357. Where articles (other than those eo nomine provided for) designed to be used together are separate, distinct, and complete in themselves, they are not to be regarded as entireties for tariff purposes, because they do not merge so as to form a new or distinct article of commerce having a different character and use, or because neither becomes essential to the completeness of the other, or bears a natural affinity or relation one to the other. See Borgfeldt v. United States, 11 Ct. Cust. Appls. 105, T. D. 38750; United States v. Kalter, id. 540, T. D. 39680; Lord & Taylor v. United States (G. A. 6942, T. D. 30140); Cincinnati Artistic Wrought Iron Works v. United States, T. D. 44354; Vantine v. United States, Abstract 34727 (T. D. 34165); Coty Processing Co., Inc. v. United States, 23 C. C. P. A. 117, T. D. 47768; and United States v. Hensel, Bruckmann & Lorbacher, Inc., 22 C. C. P. A. 281, T. D. 47330. Further, the court said— As a general proposition, therefore, articles are not regarded by the courts as entireties for dutiable purposes when there is no natural affinity in composition, and particularly where one of the articles is complete in all of its parts without regard to the article imported to be used with it. Obviously, the screws and hinges in controversy do not merge to form an article having a new name or use. The screws when affixed do not change the character of the hinges, which retain their original identity, and so do the screws, which are used merely as a means of fastening the hinges to doors or other surfaces. Moreover, as .disclosed by the stipulation of fact, “it is not necessary to use only screws as fastening devices for said hinges, but that nails, bolts or some similar fastening devices can be and are frequently used as said fastening devices.” In support of the collector’s classification of the imported articles, defendant cites the following cases," }, { "docid": "18815695", "title": "", "text": "a new and different article with a new name and use. See Isaacs v. Jonas, 148 U. S. 648; United States v. Auto Import Co., 168 Fed. 242; Park & Tilford v. United States, 1 Ct. Cust. Appls. 34, T. D. 31006; Knauth v. United States, 1 Ct. Cust. Appls. 422, T. D. 31499; Jackson Co. v. United States, 2 Ct. Cust. Appls. 475, T. D. 32227; United States v. Haaker, 4 Ct. Cust. Appls. 508, T. D. 33935; Altman v. United States, 13 Ct. Cust. Appls. 315, T. D. 41232; Salemi & Sons v. United States, 19 C. C. P. A. 43, T. D. 44892; United States v. Miyaka, 22 C. C. P. A. 38, T. D. 47039; Yardley v. United States, 22 C. C. P. A. 390, T. D. 47400; United States v. Woolworth, 23 C. C. P. A. 365, T. D. 48212; Brack v. United States, Abstract 26145, and Piver v. United States, T.D. 47357. Where articles (other than those eo nomine provided for) designed to be used together are separate, distinct, and complete in themselves, they are not to be regarded as entireties for tariff purposes, because ■ they do not merge so as to form a new or distinct article of commerce having a different character and use, or because neither becomes essential to the completeness of the other, or bears a natural affinity or relation one to the other. See Borgfeldt v. United States, 11 Ct. Cust. Appls. 105, T. D. 38750; United States v. Kalter, id. 540, T. D. 39680; Lord & Taylor v. United States (G. A. 6942, T. D. 30140); Cincinnati Artistic Wrought Iron Works v. United States, T. D. 44354; Vantine v. United States, Abstract 34727 (T. D. 34165); Coty Processing Co., Inc. v. United States, 23 C. C. P. A. 117, T. D. 47768; and United States v. Hensel, Bruckmann & Lorbacher, Inc., 22 C. C. P. A. 281, T.D. 47330. As a general proposition, therefore, articles are not regarded by the courts as entireties for dutiable purposes when there is no natural affinity in composition, and particularly where" }, { "docid": "16642195", "title": "", "text": "Oliver, Presiding Judge: This suit against the United States was brought'at the port of New York to recover customs duties claimed to have been illegally assessed upon certain croquet sets composed of balls and mallets and other articles ordinarily used in conjunction therewith. The merchandise was described on the invoice as Wimbledon Croquet or Wimbledon Championship Croquet sets. The complete sets were assessed with duty at 30 per centum ad valorem under the provision of paragraph 1502, Tariff Act of 1930, reading as follows: Par. 1502. Boxing gloves, baseballs, footballs, tennis balls, golf balls, and all other balls, of whatever material composed, finished or unfinished, primarily-designed for use in physical exercise (whether or not such exercise involves the element of sport), and all clubs, rackets, bats, golf tees, and other equipment, such as is ordinarily used in conjunction therewith, all the foregoing, not specially provided for, 30 per centum ad valorem * * *. The importer in its protest of the collector's assessment claims the balls and the croquet mallets properly dutiable at 20 per centum, ad valorem as separate articles under paragraph 1502, as amended by the trade agreement with the United Kingdom, T. D. 49753. No claim for a lower rate of duty was made by the importer on any of the other articles included in the sets. The provisions of the trade agreement, T. D. 49753, under which the importer makes its cleim, so far as pertinent, read as follows: It is plaintiff’s contention that the balls imported as part of these croquet sets are separately dutiable under the provision for “other balls” and the croquet mallets under the eo nomine provision for them in the trade-agreement modifications of paragraph 1502 as set forth above. The defendant contends that the croquet sets.as imported are entireties for tariff purposes and that as the trade agreement does not provide for “* * * other equipment, such as is ordinarily used in conjunction therewith * * *” which language appears in paragraph 1502 of the Tariff Act of 1930, the balls and croquet mallets are not separately dutiable and therefore" }, { "docid": "16642204", "title": "", "text": "the set are packed together, imported together, and intended to be used for the single purpose of playing the game of croquet, does not of itself establish that these sets are entireties. The separate items going to make up the imported croquet sets were not in any way assembled so that each of the items became an essential part of a new article having a different name, character, and use. Each of the articles may be sold separately and has a separate dutiable status, and the whole is not an entirety. (Sheldon & Co. v. United States, 14 Ct. Cust. Appls. 108, 111, T. D. 41591.) In Lang Co. et al. v. United States, 15 Ct. Cust. Appls. 341, T. D. 42495, the merchandise involved was a tablecloth and napkins imported in sets. Each set consisted of a tablecloth and six napkins to match, packed together in a paper carton. They also were ordered and sold in sets. The court therein stated: * * *. In the instant case the tablecloth is complete without the napkins. The napkins are complete articles independent of the tablecloth. The mere fact that they may be bought, sold, and used together, in sets, does not require that they be regarded as entireties for tariff purposes. The court further stated (p. 342): * * *. The mere fact that they may be bought; sold, and used together, in sets, does not require that they be regarded as entireties for tariff purposes. In United States v. Kalter Mercantile Co. et al., 11 Ct. Cust. Appls. 540, T. D. 39680, the merchandise before the court consisted of rubber hip boots with leather straps. On the question of entireties the court said at page 544: * * *. Can it be fairly said that when the leather strap is attached to the boot by being passed through the rubber loop, it becomes so merged with the boot by assembly that it loses its identity as a leather strap? Certainly when thus united the bo6t and the strap do not merge so as to form a new or distinct" }, { "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": "6632196", "title": "", "text": "would otherwise have been a gap in the strap. The court held they were not entireties on the ground that the completed article was a novelty; that there was no natural affinity or relation between a handbag and a watch, and that neither was normally essential to the completeness of the other. This case was followed in United States v. Sales & Co., Inc., 21 CCPA 186, T.D. 46714, which involved a handbag having a watch set in one comer on the outside. In Selsi Co., Inc. v. United States, 2 Cust. Ct. 371, C.D. 160, it was held that so-called weather sets, each composed of an aneroid barometer, a hygrometer, and a thermometer, all imported mounted on a wooden frame and base, were erroneously classified as entireties. There was evidence that the articles were never broken down and the parts sold separately, but the barometers, thermometers, and hygrometers were entirely separate, distinct, and independent articles; the operation of one in no way affected the functioning of the others. The court stated that articles are not regarded as entireties for dutiable purposes where there is no natural affinity in composition and where one of the articles is complete in all its parts without regard to the article imported to be used with it, citing many cases. In Naumes Forwarding Service v. United States, 30 Cust. Ct. 441, Abstract 57300, the merchandise, a combination buckle and lighter, was assessed with duty separately on the buckle and lighter portions. The court (per Oliver, C. J.) held that the components were designed to form a complete article of commerce, which, when assembled, was neither a lighter nor a buckle. It stated (p. 443) : * * * The lighter is designed to, and actually does, form an integral part of the buckle, and the same is true with respect to the buckle and its relationship to the lighter. The back screw of the lighter is the fastening device that snaps together the front and back pieces of the buckle. The front plate of the buckle is a housing for the lighter. Without that" }, { "docid": "22210703", "title": "", "text": "hinges for wooden surfaces, but that longer or shorter wood screws are occasionally used with said hinges, and said hinges are also used as hinges for non-wooden surfaces (such as metal surfaces) where different kinds of fastening devices are required. 6. That the six holes in each of the hinges are countersunk in such a way that the heads of the imported screws which are packed therewith and which are also countersunk under the heads so that when said screws are used as fastening devices with the hinges, the heads of the screws fit the countersunk holes and the top of the screws lie flush with the face of the hinge. # ifc s¡« An examination of exhibit 1, which was received in evidence to illustrate the imported merchandise, discloses that it is a cardboard box, containing 2 hinges and 12 screws which are packed together as a set. The hinges contain 6 countersunk holes, by means of which they may be fastened to surfaces with 6 screws of the size, design, and shape known as wood screws and suitable for attaching the hinges to a wooden surface. It appears, however, from paragraph 4 of the agreed statement of facts “That it is not necessary to use only screws as fastening devices for said hinges, but that nails, bolts or some similar fastening devices can be and are frequently used as said fastening devices.” It is noted also that in paragraph 2 of the stipulation it is agreed “* * * that said screws are ordinary wood screws of steel capable of use in any wooden surface and not necessarily with any particular article or surface.” Obviously, the salient facts in the case are not in dispute. The primary question for determination here is whether the hinges and screws were properly regarded as entireties for duty purposes. Plaintiff, in its brief, sets forth what it deems to be “the particular points that are decisive of this case * * *”— 1. The screws herein are provided for eo nomine in Paragraph 338. Hinges, as such, are not provided for in" }, { "docid": "6632190", "title": "", "text": "imported articles do not consist of any of those types of combination articles which are entitled to classification as tariff entireties. There is no merger of brush and shoehorn which created an article which can be said to be something more than either a brush or a shoehorn, nor one in which either the brush or the shoehorn is clearly the predominant feature. Each article is used independently of the other. The mere fact that two articles are joined together and are imported and intended to be sold together as a unit does not necessarily create a tariff entirety. Compare United States v. Wanamaker, 20 CCPA (Customs) 367, T.D. 46132. Nor does the conferring upon the combination of a trade name, “Groom-Aide,” endow it with a tariff status which it otherwise would not have. What is before us is essentially a complete, long-handled shoehorn, to which a clothesbrush has been attached. The combination has no character or use different from that of its individual parts, and neither of the parts is incidental to the character and use of the other. Such a combination does not constitute an entirety for tariff purposes. The above not having been refuted, and 'being dispositive of the evidence herein, including the new exhibit 2, we incorporate it in our opinion. In support of its position contrary to the holding in the •Stevens case, plaintiff relies upon Arnart Imports, Inc. v. United States, 54 Cust. Ct. 187, C.D. 2531, and the cases cited therein. The article there was a wall plaque, consisting of a porcelain center with raised figures, attached to a velvet pad and enclosed in a decorated wooden frame, to which the velvet pad was attached. It was possible to disassemble the article, and the wooden frame would still be a frame which might 'be sold as such, although the other parts would not be commercially salable. The court held that the article was a single commercial entity for tariff purposes, notwithstanding the fact that it could be disassembled after importation without injury to one of the parts. The distinction between that case and" }, { "docid": "22210706", "title": "", "text": "The principle of customs law is well settled that to constitute an entirety for tariff purposes a combination of two or more articles must be so joined together or merged that the whole creates a new and different article with a new name and use. See Isaacs v. Jonas, 148 U. S. 648; United States v. Auto Import Co., 168 Fed. 242; Park & Tilford v. United States, 1 Ct. Cust. Appls. 34, T. D. 31006; Knauth v. United States, 1 Ct. Cust. Appls. 422, T. D. 31499; Jackson Co. v. United States, 2 Ct. Cust. Appls. 475, T. D. 32227; United States v. Haaker, 4 Ct. Cust. Appls. 508, T. D. 33935; Altman v. United States, 13 Ct. Cust. Appls. 315, T. D. 41232; Salemi & Sons v. United States, 19 C. C. P. A. 43, T. D. 44892; United States v. Miyaka, 22 C. C. P. A. 38, T. D. 47039; Yardley v. United States, 22 C. C. P. A. 390, T. D. 47400; United States v. Woolworth, 23 C. C. P. A. 365, T. D. 48212; Brach v. United States, Abstract 26145, and Fiver v. United States, T. D. 47357. Where articles (other than those eo nomine provided for) designed to be used together are separate, distinct, and complete in themselves, they are not to be regarded as entireties for tariff purposes, because they do not merge so as to form a new or distinct article of commerce having a different character and use, or because neither becomes essential to the completeness of the other, or bears a natural affinity or relation one to the other. See Borgfeldt v. United States, 11 Ct. Cust. Appls. 105, T. D. 38750; United States v. Kalter, id. 540, T. D. 39680; Lord & Taylor v. United States (G. A. 6942, T. D. 30140); Cincinnati Artistic Wrought Iron Works v. United States, T. D. 44354; Vantine v. United States, Abstract 34727 (T. D. 34165); Coty Processing Co., Inc. v. United States, 23 C. C. P. A. 117, T. D. 47768; and United States v. Hensel, Bruckmann & Lorbacher, Inc., 22 C." }, { "docid": "22210705", "title": "", "text": "the tariff law except in the catch-all provision for manufactures of metal. 2. The screws can be used in any wooden surface, and they are not dedicated for use with the hinges with which imported or with any other article. 3. The hinges can be, and frequently are, attached to surfaces by fastening devices that are not the imported screws. In support of its contention, plaintiff invites our attention to the case of Kwong Yuen & Co. v. United States, 73 Treas. Dec. 297, T. D. 49409, in which china vases and wooden stands therefor were held to be separately dutiable; also to the case of Abercrombie & Fitch Co. v. United States, 10 Cust. Ct. 222, C. D. 758, wherein balls, mallets, and other articles, comprising parts of a croquet set, were held subject to classification as separate entities. Plaintiff further calls our attention to the case of Selsi Co., Inc., v. United States, 2 Cust. Ct. 371, C. D. 160, in which this court expressed itself as follows upon the subject of entireties: The principle of customs law is well settled that to constitute an entirety for tariff purposes a combination of two or more articles must be so joined together or merged that the whole creates a new and different article with a new name and use. See Isaacs v. Jonas, 148 U. S. 648; United States v. Auto Import Co., 168 Fed. 242; Park & Tilford v. United States, 1 Ct. Cust. Appls. 34, T. D. 31006; Knauth v. United States, 1 Ct. Cust. Appls. 422, T. D. 31499; Jackson Co. v. United States, 2 Ct. Cust. Appls. 475, T. D. 32227; United States v. Haaker, 4 Ct. Cust. Appls. 508, T. D. 33935; Altman v. United States, 13 Ct. Cust. Appls. 315, T. D. 41232; Salemi & Sons v. United States, 19 C. C. P. A. 43, T. D. 44892; United States v. Miyaka, 22 C. C. P. A. 38, T. D. 47039; Yardley v. United States, 22 C. C. P. A. 390, T. D. 47400; United States v. Woolworth, 23 C. C. P. A." }, { "docid": "22210709", "title": "", "text": "wherein certain commodities were held to be subject to duty as entireties: Artgift Corp. v. United States, 30 Cust. Ct. 372, Abstract 57135 — a metal statuette, securely affixed to a wooden base, with a glass dome placed over the statuette. Altman & Co. v. United States, 13 Ct. Cust. Appls. 315, T.D. 41232— corsets and lace trimmings, the trimmings being imported for the sole purpose of finishing and completing the corsets. United States v. Auto Import Co., 168 Fed. 242 — automobiles imported with the exact number of tires required for their use. L. Oppleman, Inc. v. United States, 73 Treas. Dec. 817, T. D. 49565— barometers and parts thereof, and barometer frames or cases therefor into the bases of which were fastened circular containers in the form of ships’ steering wheels for the purpose of holding the barometers in position, the frames or cases being regarded as essential to the proper functioning of the barometers. The factual circumstances of the four cases just cited differ from those in the instant case in such important respects as to distinguish them clearly, and we find nothing therein inimical to the conclusion we have reached. In each of the cases cited by defendant, the .various items of merchandise in controversy merged in such a manner as to complete the involved articles. In the issue now before us, there is no merger of hinges and screws — each retains its individual identity at all times. For the reasons above set forth, we sustain the claim in the protest that the screws in controversy are properly dutiable at 12% per centum ad valorem as provided in paragraph 338 of the Tariff Act of 1930, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, supra. Judgment will be issued in accordance with the views above expressed." }, { "docid": "18815703", "title": "", "text": "as manufactures of wood as assessed by the collector; that the lithographic prints are dutiable at the appropriate rate provided in paragraph 1406; and that the mere fact that the values of the lithographic prints and the wooden frames were not separately “specified on the invoice” and in the entry does not affect their classification. In F. W. Woolworth Co. v. United States, 26 C. C. P. A. 221, C. A. D. 20, certain merchandise, consisting of short, mechanical pencils attached by chain to small, silver-finished metal animal figures, was classified for duty by the collector as follows: The pencils under the eo nomine provision therefor in paragraph 1550 (c), Tariff Act of 1930, and the figures and chains under paragraph 397 of said act. The question of entireties was not before the court, but the case may be cited in support of the proposition that when two or more articles are imported as a unit and such articles retain their identity and perform separate and distinct functions, and there is no natural affinity or relation between them, they are not regarded as entireties for tariff purposes. In Lord & Taylor v. United States, T. D. 30140-G. A. 6942, articles-consisting of celluloid cases containing perfumery bottles were held not to be considered as entireties though they were imported packed together, and were sold and used together. The court said: * * * The celluloid cases are complete articles in themselves, while the bottles are the ordinary perfumery bottles of commerce, selected with a view to the appropriate size. The articles are individual and separate entities * * *. In United States v. Myers & Co., 11 Ct. Cust. Appls. 409, T. D. 39322, the merchandise in question consisted of the carcasses of calves with the skins on. They were classified by the collector as entireties, as veal, at 2 cents per pound under paragraph. 14 of the Emergency Tariff Act of 1921. The importer claimed the skins to be segregable tariff entities and as such entitled to free entry under paragraph 604, Tariff Act of 1913. In holding the merchandise" }, { "docid": "18815694", "title": "", "text": "the barometers, hygrometers, and thermometers covered by this suit are separate and distinct articles, each performing its own particular function in and by itself without being in the remotest sense dependent upon or in any way related to or connected with either or both of the other articles, and that in each instance the wooden case or frame and base is an integral part of the article. 2. That both the barometers and hygrometers are mechanical contrivances which utilize, apply, or modify energy or force for the transmission of motion. On the established facts it follows as a matter of law, and we so hold, that the collector erred in classifying the barometers with thermometers attached to the case, and the so-called combination weather sets as entireties, instead of classifying each of said articles as a separate and distinct tariff entity. The principle of customs law is well settled that to constitute an entirety for tariff purposes a combination of two or more articles must be so joined together or merged that the whole creates a new and different article with a new name and use. See Isaacs v. Jonas, 148 U. S. 648; United States v. Auto Import Co., 168 Fed. 242; Park & Tilford v. United States, 1 Ct. Cust. Appls. 34, T. D. 31006; Knauth v. United States, 1 Ct. Cust. Appls. 422, T. D. 31499; Jackson Co. v. United States, 2 Ct. Cust. Appls. 475, T. D. 32227; United States v. Haaker, 4 Ct. Cust. Appls. 508, T. D. 33935; Altman v. United States, 13 Ct. Cust. Appls. 315, T. D. 41232; Salemi & Sons v. United States, 19 C. C. P. A. 43, T. D. 44892; United States v. Miyaka, 22 C. C. P. A. 38, T. D. 47039; Yardley v. United States, 22 C. C. P. A. 390, T. D. 47400; United States v. Woolworth, 23 C. C. P. A. 365, T. D. 48212; Brack v. United States, Abstract 26145, and Piver v. United States, T.D. 47357. Where articles (other than those eo nomine provided for) designed to be used together are separate, distinct," }, { "docid": "18820482", "title": "", "text": "a case. The goods are therefore watch movements inclosed in a case and are precisely described in paragraph 367.” Id. at 649. (Emphasis added.) Inasmuch as clocks, unlike watches, were provided for in prior tariff statutes, clocks and clock movements imported in the same shipment, although packed separately, were held dutiable as entireties under the provision for clocks, rather than a's separate entities. Oliver Enders v. United States, 72 Treas. Dec. 790, T.D. 49312 (1937). See also Berg Importing Co., James Loudon & Co., Inc. v. United States, 32 Cust. Ct. 210 C.D. 1604 (1954). However, where earthenware clock case sets were held separately dutiable from their movements because they were specially provided for under paragraph 211, Tariff Act of 1922, as “[ejarthenware * * * clock cases with or without movements”, the complete clock movement with dial and hands was assessed as a unit under the clock movement provision of paragraph 368 of that act. C. A. Haynes & Co. v. United States, 62 Treas. Dec. 558, T.D. 46007 (1932); accord, Transatlantic Clock & Watch Co. v. United States, 60 Treas. Dec. 1337, Abstract 17677 (1931). See also C. J. Tagliabue Mfg. Co. v. United States, 21 CCPA 221, T.D. 46751 (1933). In short, although plaintiff strains for a more restricted meaning, the term “movement” for tariff purposes, has long embraced the imported article equipped with “hands”. Accordingly, absent any evidence of contrary Congressional intent, the court must conclude that the term “clock movement”, as used in subpart E, headnote 5 of schedule 7, part 2, was not intended to have a meaning or effect different from that attached to its use elsewhere in subpart E. To hold otherwise would distort the stated purpose and intent of the Customs Simplification Act of 1954 (which directed the Tariff Commission to revise and consolidate the tariff classification schedules) to eliminate anomalies and illogical results in the classification of articles. Tariff Glassification Study, Submitting Report, November 15, 1960, 1, 42, et seq. Furthermore, it would do violence to the general rule that statutes in pari materia must be construed together. Goat and" }, { "docid": "22210701", "title": "", "text": "court, be received into evidence as Plaintiff’s Exhibit 1, all of which were classified and assessed with duty as entireties as manufactures in chief value of metal, not specially provided for, with duty at 22% per cent ad valorem under paragraph 397, TariS Act of 1930, as modified by the President under the General Agreement on Tariffs and Trade, T. D. 51802. >}: ^ # ‡ ‡ ‡ # 2. * * * that said screws are ordinary wood screws of steel capable of use in any wooden surface and not necessarily with any particular article or surface. 3. That each hinge is designed for use 'and is capable of use only as a hinge; that each said hinge consists of two brass plated butts or wings fastened together with a round headed steel pin; that each butt or wing contains 3 holes therein through which holes each hinge is designed to be fastened as a hinge to two separate surfaces by means of screws, nails, bolts or similar fastening devices. 4. That it is not necessary to use only screws as fastening devices for said hinges, but that nails, bolts or some similar fastening devices can be and are frequently used as said fastening devices. However, screws, nails, bolts or some similar fastening devices (with shanks capable of passing through the said holes in the said hinges and of engaging the surfaces being hinged, and with heads sufficiently large not to pass through said holes in said hinges) must be employed to fasten the hinges to the two surfaces being hinged together. 5. That the merchandise is sold to the trade in its condition as represented by Exhibit 1, and the number of screws (12 screws) in each package is exactly the number required for the use of the two hinges in each package when all holes in each hinge are used; that the size, design and shape of the said screws in each of said boxes is customary and suitable for attaching the hinges with which packed to wooden surfaces and that said hinges are usually used as" }, { "docid": "22210704", "title": "", "text": "as wood screws and suitable for attaching the hinges to a wooden surface. It appears, however, from paragraph 4 of the agreed statement of facts “That it is not necessary to use only screws as fastening devices for said hinges, but that nails, bolts or some similar fastening devices can be and are frequently used as said fastening devices.” It is noted also that in paragraph 2 of the stipulation it is agreed “* * * that said screws are ordinary wood screws of steel capable of use in any wooden surface and not necessarily with any particular article or surface.” Obviously, the salient facts in the case are not in dispute. The primary question for determination here is whether the hinges and screws were properly regarded as entireties for duty purposes. Plaintiff, in its brief, sets forth what it deems to be “the particular points that are decisive of this case * * *”— 1. The screws herein are provided for eo nomine in Paragraph 338. Hinges, as such, are not provided for in the tariff law except in the catch-all provision for manufactures of metal. 2. The screws can be used in any wooden surface, and they are not dedicated for use with the hinges with which imported or with any other article. 3. The hinges can be, and frequently are, attached to surfaces by fastening devices that are not the imported screws. In support of its contention, plaintiff invites our attention to the case of Kwong Yuen & Co. v. United States, 73 Treas. Dec. 297, T. D. 49409, in which china vases and wooden stands therefor were held to be separately dutiable; also to the case of Abercrombie & Fitch Co. v. United States, 10 Cust. Ct. 222, C. D. 758, wherein balls, mallets, and other articles, comprising parts of a croquet set, were held subject to classification as separate entities. Plaintiff further calls our attention to the case of Selsi Co., Inc., v. United States, 2 Cust. Ct. 371, C. D. 160, in which this court expressed itself as follows upon the subject of entireties:" } ]

[ { "docid": "22759369", "title": "", "text": "Present: MINER, SACK, SOTOMAYOR, Circuit Judges. UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review of the decision of the Board of Immigration Appeals (“BIA”) is hereby DENIED. Yu Yin Yang petitions for review of a BIA decision affirming the Immigration Judge’s (“IJ”) decision denying her application for asylum and withholding of removal. We assume the parties’ familiarity with the underlying facts and procedural history. This Court generally reviews only the final order of the BIA, but when the BIA adopts the IJ’s decision and supplements it, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). This Court reviews the IJ’s and BIA’s factual findings under the substantial evidence standard, and as such, “a finding will stand if it is supported by ‘reasonable, substantial, and probative’ evidence in the record when considered as a whole.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)). This Court also uses the substantial evidence standard to review credibility determinations, and its review of an adverse credibility determination is “highly deferential.” Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005)(per curiam). “Where the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his [or her] claims of persecution, or on contrary evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004). In this case, the IJ and BIA found that the following discrepancies, inconsistencies, and implausibilities, inter alia, caused Yang’s testimony not to be credible: (1) Yang testified that she had an IUD inserted in January 1998, but submitted a document reflecting that she had an IUD inserted in July 1998; (2) Yang testified that after the IUD was inserted, she was required to undergo three or four" } ]

[ { "docid": "23115656", "title": "", "text": "B.D. PARKER, JR., Circuit Judge. Petitioner Mahamed Ayenul Islam, a native and citizen of Bangladesh, seeks review of a 34 February 14, 2005, order of the Board of Immigration Appeals (“BIA”) affirming the May 18, 1998, decision of Immigration Judge (“IJ”) Jeffrey S. Chase, which denied Islam’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) on the basis that Islam’s testimony and documents lacked credibility. See In re Mahamed Ayenul Islam, No. [ A XX XXX XXX ] (B.I.A. Feb. 14, 2005), aff'g No. [ A XX XXX XXX ] (Immig. Ct. N.Y. City May 18, 1998). Where, as here, the BIA adopts and affirms the decision of the IJ, and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the factual findings of the BIA and IJ for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). We review de novo the IJ’s determination of mixed questions of law and fact, as well as the IJ’s application of law to facts. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). I. The Asylum Hearing During immigration proceedings, an IJ has the authority to “administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses.” 8 U.S.C. § 1229a(b)(l). Unlike an Article III judge, an IJ is not merely the fact finder and adjudicator, but also has an obligation to establish and develop the record. See Qun Yang v. McElroy, 277 F.3d 158, 162 (2d Cir.2002). At the same time, as a judicial officer, an immigration judge has a responsibility to function as a neutral, impartial arbiter and must be careful to refrain from assuming the role of advocate for either party. See Qun Wang v. Attorney Gen. of the U.S., 423 F.3d 260, 261 (3d Cir.2005). During the course of developing a sound and useful record, an IJ must, when appropriate, question an applicant in order, for example, to probe" }, { "docid": "22246148", "title": "", "text": "decision are actually present in the record; the inconsistencies pertain to the salient points of the respondent’s claims; and the inconsistencies provide a cogent basis for the adverse credibility determination.” In re Diallo, [ AXX XXX XXX ], slip op. at 1 (BIA June 29, 2004). The BIA further stated that “the respondent failed to provide convincing explanations for the discrepant record either during the removal hearings or on appeal.” Id. The BIA therefore adopted and affirmed the decision of the IJ. Diallo then brought this petition for review. She argues that the IJ erred in: (1) ignoring her explanations for the apparent inconsistencies in her story, (2) relying on the written summary of the asylum interview, and (3) requiring corroborative evidence without identifying specific pieces of evidence or showing that they were reasonably available to Diallo. DISCUSSION I. Standard of Review When the BIA issues a brief opinion adopting an IJ’s decision, we review the two decisions together — including “the portions [of the IJ’s decision] not explicitly discussed by the BIA.” Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394-95 (2d Cir.2005) (per curiam); see also Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). We review the IJ’s factual findings, including credibility determinations, for substantial evidence. See id. at 306-07. Under this standard, the IJ’s factual determinations may be overturned only if “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We have frequently considered how substantial the evidence must be in order for it to support an adverse credibility determination. In general, we “afford particular deference in applying the substantial evidence standard” to credibility findings, Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004) (internal quotation marks omitted), because “the IJ’s ability to observe the witness’s demeanor places her in the best position to evaluate whether apparent problems in the witness’s testimony suggest a lack of credibility or, rather, can be attributed to an innocent cause such as difficulty understanding the question,” Jin Chen v. U.S. Dep’t of Justice 426 F.3d 104, 113 (2d Cir.2005). But “the fact that" }, { "docid": "22246149", "title": "", "text": "v. Gonzales, 432 F.3d 391, 394-95 (2d Cir.2005) (per curiam); see also Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). We review the IJ’s factual findings, including credibility determinations, for substantial evidence. See id. at 306-07. Under this standard, the IJ’s factual determinations may be overturned only if “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We have frequently considered how substantial the evidence must be in order for it to support an adverse credibility determination. In general, we “afford particular deference in applying the substantial evidence standard” to credibility findings, Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004) (internal quotation marks omitted), because “the IJ’s ability to observe the witness’s demeanor places her in the best position to evaluate whether apparent problems in the witness’s testimony suggest a lack of credibility or, rather, can be attributed to an innocent cause such as difficulty understanding the question,” Jin Chen v. U.S. Dep’t of Justice 426 F.3d 104, 113 (2d Cir.2005). But “the fact that the [agency] has relied primarily on credibility grounds in dismissing an asylum application cannot insulate the decision from review.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). For an adverse credibility determination to be upheld, the factfinder must provide “specific, cogent reasons” that “bear a legitimate nexus to the finding,” Surinder Singh v. BIA, 438 F.3d 145, 147 (2d Cir.2006) (per curiam) (internal quotation marks and citation omitted), and that are not based on “flawed reasoning, bald speculation, or conjecture,” Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 158 (2d Cir.2006). II. Diallo’s Inconsistent Statements The IJ found Diallo not to be credible because of “inconsistencies and contradictions” in the statements she made during the asylum application process. Oral Decision at 8. It is well established that inconsistent statements made by the petitioner can constitute substantial evidence supporting an adverse credibility determination. See Zhou Yun Zhang, 386 F.3d at 77-78. Diallo contends, however, that her statements are not actually inconsistent. Pointing to the explanations for the apparent inconsistencies that she gave" }, { "docid": "12003582", "title": "", "text": "the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). However, an adverse credibility determination must be based on “specific, cogent reasons” that “bear a legitimate nexus to the finding.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted). A determination “based on flawed reasoning ... will not satisfy the substantial evidence standard,” and the agency’s use of “an inappropriately stringent standard when evaluating an applicant’s testimony constitutes legal, not factual error.” Id. We will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). However, where despite evident errors, we can confidently predict that the agency would adhere to the same result absent error, we need not remand. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.2006). Finally, de novo review is required for questions of law and the application of law to undisputed fact. E.g., Secaidcir-Rosales, 331 F.3d at 307. II. Balachova The IJ found that Balachova was not credible. This finding was dispositive of all her claims; yet, Balachova did not point out any errors in the IJ’s adverse credibility finding on her appeal to the BIA. Although issue exhaustion is not jurisdictional, it is mandatory. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 121-24 (2d Cir.2007). Thus, we grant the government’s request to dismiss Balachova’s claims for failure to exhaust administrative remedies. III. Krasnoperov A. Credibility The basis of the IJ’s adverse credibility finding for Krasnoperov is very unclear. The only specific factor she cited with reference to credibility was a variance between Krasnoperov’s asylum application and his testimony. While Judge Holmes-Simmons did not identify the inconsistency in her credibility analysis, she had earlier stated that Krasnoperov testified that he had never filed a false report, but that his asylum statement indicated that he had been asked to rob villagers" }, { "docid": "22298385", "title": "", "text": "other protected ground under [8 U.S.C. § 1158], if he is removed to the Republic of Congo. Id. (citations omitted). Passi timely petitioned this Court for review, again only challenging the denial of his asylum claim. II When the BIA affirms an IJ’s decision on different grounds, we review only the BIA’s decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). As we have explained on several occasions, however, when the BIA affirms the IJ’s decision in some respects, but not others, we may also review the IJ’s decision, although our review is confined to those reasons for denying relief that were adopted by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). See generally Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). In this case, the BIA assumed that Passi’s asylum application was timely filed and that he had testified credibly, so we may not rest on the IJ’s adverse credibility finding or her ruling pretermitting Passi’s asylum claim. See Yan Chen, 417 F.3d at 271. Instead the BIA adopted the IJ’s reason for denying Passi’s withholding of removal claim — that country conditions had changed — to reject his asylum claim. Although we are reviewing the BIA’s decision, we find it informative in this case to look to the IJ’s decision as well to decipher the reasoning in which the BIA “concur[red]” just as we would if the BIA had merely modified or supplemented the IJ’s decision. We review the agency’s factual findings under the substantial evidence standard treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). We will, however, vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed, for example, where the agency’s determination was “based on an inaccurate perception of the record, omitting potentially significant facts.” Tambadou v. Gonzales, 446 F.3d 298, 302 (2d Cir.2006) (internal quotation marks omitted); see also Cao He" }, { "docid": "22604779", "title": "", "text": "70, 77 (2d Cir.2005); Secaida-Rosales, 331 F.3d at 307. This Court reviews the IJ’s factual findings under the substantial evidence standard; findings of fact are treated as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Zhou Yun Zhang v. U.S. I.N.S., 386 F.3d 66, 73 (2d Cir.2004). An IJ’s factual finding will be affirmed if it is “supported by evidence that is ‘reasonable, substantial, and probative’ when considered in light of the record as a whole.” Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113(2d Cir.2005) (quoting Diallo v. I.N.S., 232 F.3d 279, 287 (2d Cir.2000)). Despite the deference typically afforded IJ and BIA decisions, this Court “require[s] a certain minimum level of analysis from the IJ and BIA opinions denying asylum, and indeed must require such if judicial review is to be meaningful.” Poradisova, 420 F.3d at 77. Where the BIA has affirmed without issuing an opinion, our review is limited “ ‘to the reasoning of the IJ, and we will not search the record independently for a basis to affirm the BIA.’ ” Jin Chen, 426 F.3d at 113(quoting Secaida-Rosales, 331 F.3d at 305); see also Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 400 (2d Cir.2005). “[T]he immigration court must adequately link its decision to the record evidence in a reasoned opinion that properly applies the law....” Ivanishvili, 433 F.3d at 337. This Court retains substantial authority to vacate and remand BIA and IJ decisions that result from flawed reasoning, a sufficiently flawed fact-finding process, or the application of improper legal standards. See Rizal v. Gonzales, 442 F.3d 84, 89 (2d Cir.2006); Cao He Lin, 428 F.3d at 400-01, 406; see also Ivanishvili, 433 F.3d at 337. This Court also will not hesitate to vacate and remand where the BIA or IJ analysis is insufficient to determine whether the correct legal standard was applied. See Beskovic v. Gonzales, 467 F.3d 223, 224 (2d Cir.2006); Mirzoyan v. Gonzales, 457 F.3d 217, 221 (2d Cir.2006) (per curiam). Such defects “are not excused by" }, { "docid": "23108420", "title": "", "text": "returned to Mauritania. In one respect, however, the BIA seemed to go further than the IJ, noting “that the record indicates that the current situation in Mauritania has improved dramatically, lessening the likelihood of persecution.” Accordingly, the Board dismissed Niang’s appeal. This petition for review of the agency’s denial of Niang’s withholding and CAT claims followed. Discussion Where, as here, the BIA adopts the decision of the IJ, and supplements that decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 275 (2d Cir.2005). 1. Past Persecution A. The Adverse Credibility Finding The petition attacks the IJ’s findings that Niang submitted identity documents that were not genuine, and that he testified untruthfully about them. Finding various errors in the reasoning leading to the IJ’s adverse credibility decision, we vacate and remand that finding. This Court reviews the agency’s factual findings, including its adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Nevertheless, the court will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). An adverse credibility determination must be based on “specific, cogent reasons” that “bear a legitimate nexus” to the finding. Secaidar-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks and citations omitted). Particular deference is given to the trier of fact’s assessment of demeanor. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005). To his credit, the IJ expressly stated that he found no fault with Niang’s demeanor. Petitioner’s “manner of speaking” was, in the eyes of the IJ, “totally consistent with somebody who had lived through what he said he did.” Thus, one of the most powerful reasons to defer to an IJ’s adverse credibility finding is absent in this case. See Wensheng Yan v. Mukasey," }, { "docid": "13631837", "title": "", "text": "of future persecution, he denied her application for asylum and withholding of removal. Similarly finding no evidence to indicate that petitioner would be tortured if returned to China, the IJ denied her CAT relief. D. Petitioner’s BIA Appeal Yan Fang Zhang appealed the IJ’s decision to the BIA. While that appeal was pending, petitioner’s counsel, by letter dated May 2, 2003, advised the BIA that, on April 23, 2003, the agency had granted to Yan Fang Zhang’s husband asylum and withholding of removal apparently based on the same family planning claim. On September 8, 2003, the BIA summarily affirmed the IJ’s decision in petitioner’s case, making no mention of the contrary ruling in her husband’s case. II. Discussion A. Standard of Review Where, as in this case, the BIA summarily affirms an IJ decision denying relief from removal, see 8 C.F.R. § 1003.1(e)(4), we treat the IJ’s ruling as the final agency determination and review it directly, see Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). We review de novo any questions of law. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 543-44 (2d Cir.2005). The IJ’s factual findings, however, “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we will affirm the IJ’s factual determinations provided they are “supported by ‘reasonable, substantial, and probative’ evidence in the record,” Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (per curiam) (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)), and were “not reached arbitrarily or capriciously,” Zhou Yun Zhang v. United States INS, 386 F.3d 66, 74 (2d Cir.2004). B. Asylum and Withholding of Removal To qualify for asylum, “a refugee must demonstrate past persecution or a well-founded fear of future persecution on account of ‘race, religion, nationality, membership in a particular social group, or political opinion.’ ” Id. at 70 (quoting 8 U.S.C. § 1101(a)(42)). The standard for withholding of removal is higher, see id. at 71, requiring a showing that “it is more likely than not” that the applicant’s “ ‘life or" }, { "docid": "22773845", "title": "", "text": "a fine; and (7) the 2002 State Department Report was inconsistent with Yan’s testimony that many individuals from Fujian Province were able to have extra children if they paid a fine. In re Wensheng Yan, No. [ AXX XXX XXX ] (Immig. Ct. Hartford May 8, 2003). The BIA affirmed the IJ’s decision without opinion. In re Wensheng Yan, No. [ AXX XXX XXX ] (B.I.A. Aug. 4, 2004). Yan petitions for review of the BIA’s order. II. Discussion A. Standard of Review Where, as here, the BIA affirms an IJ’s decision without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See, e.g., Timm v. INS, 411 F.3d 54, 58 (2d Cir.2005); Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 159 (2d Cir.2004). This Court reviews the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004), overruled in part on other grounds, Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005). In this case, the alleged flaw relates to the sufficiency of the evidence and the explanation supporting the IJ’s finding that the petitioner’s account of persecution was implausible. This Court generally will not disturb adverse credibility determinations that are based on “specific examples in the record of inconsistent statements ... about matters material to [an applicant’s] claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters.” Zhou Yun Zhang, 386 F.3d at 74 (internal quotation marks omitted). B. Inherently Implausible Testimony It is well settled that, in assessing the credibility of an asylum applicant’s testimony, an IJ is entitled to consider whether the applicant’s" }, { "docid": "22461171", "title": "", "text": "his departure, unwitting Indian authorities continued to visit his family’s home in attempts to detain him. After holding a hearing on the merits of Singh’s applications on March 30, 2001, the IJ made an adverse credibility finding against Singh, denied Singh’s applications for asylum and withholding of removal and granted Singh’s application for voluntary departure. On appeal, the BIA summarily affirmed the IJ’s order. “Where, as here, the BIA has affirmed the IJ’s decision without an opinion, we review the IJ’s decision directly under a standard of ‘substantial evidence.’ ” Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 150 (2d Cir.2006); see also 8 U.S.C. § 1252(b)(4)(B) (providing that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”). We engage in an “ ‘exceedingly narrow’ ” review, Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999) (quoting Carranza-Hernandez v. INS, 12 F.3d 4, 7 (2d Cir.1993)), that involves “looking] to see if the IJ has pro vided ‘specific, cogent’ reasons for the adverse credibility finding and whether those reasons bear a ‘legitimate nexus’ to the finding.” Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir.2004) (quoting Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003)). Our “review is designed to ensure merely that ‘credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice.’ ” Xiao Ji Chen, 434 F.3d at 157 (quoting Zhou Yun Zhang, 386 F.3d at 74). Although our review of an IJ’s denial of asylum and withholding of removal on credibility grounds is “highly deferential,” Zhou Yi Ni v. U.S. Dep’t of Justice, 424 F.3d 172, 174 (2d Cir.2005); Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005); Jin Hui Gao v. U.S. Att’y Gen., 400 F.3d 963, 964 (2d Cir.2005), “an IJ’s credibility determination will not satisfy the substantial evidence standard when it is based entirely on flawed reasoning, bald speculation, or conjecture.” Xiao Ji Chen, 434 F.3d at 158 (citing Secaida-Rosales, 331 F.3d at 307, 312). When an" }, { "docid": "22627868", "title": "", "text": "REENA RAGGI, Circuit Judge. Shunfu Li, a native of China who claims to have been persecuted in that country for her practice of Falun Gong, petitions for review of the July 16, 2004 decision of the Board of Immigration Appeals (“BIA”) affirming the April 16, 2003 decision of Immigration Judge (“IJ”) Barbara A. Nelson denying petitioner’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). See In re Shunfu Li, No. [ AXX XXX XXX ] (BIA July 16, 2004), aff'g In re Shunfu Li, No. [ AXX XXX XXX ] (Immig.Ct.N.Y.City, Apr. 16, 2003). Petitioner submits that, to the extent the agency determined that her fear of future persecution was not credible, it erred in (1) finding her testimony (a) vague, and (b) inconsistent with website reports of conditions in China; and (2) faulting her failure to authenticate documentary evidence of an outstanding warrant for her arrest in China. Since the agency decided Li’s case, this court has indicated that certain inquiries or findings are necessary preliminary to holding that vague or unauthenticated evidence is not credible or cannot be relied upon. See Ming Shi Xue v. BIA, 439 F.3d 111, 121-22 (2d Cir.2006) (holding finding of testimonial vagueness cannot by itself support adverse credibility determination unless IJ identifies “alleged inconsistencies” and provides applicant with “an opportunity to address them”); Jin Chen v. United States Dep’t of Justice, 426 F.3d 104, 114 (2d Cir.2005) (same); Cao He Lin v. United States Dep’t of Justice, 428 F.3d 391, 404-05 (2d Cir.2005) (holding IJ cannot reject purportedly official documents solely because petitioner failed to authenticate them pursuant to 8 C.F.R. § 287.6). The agency’s decision did not meet the requirements imposed by these cases, and hence was erroneous. Further, because we cannot confidently predict that the agency would reach the same decision absent these errors, we grant Li’s petition, vacate the challenged agency decision, and remand the case to the BIA for further proceedings. 1. Background Shunfu Li entered the United States without documentation in June 2001. In response to removal proceedings initiated by the Immigration" }, { "docid": "22604778", "title": "", "text": "“it is more likely than not” that the applicant’s “ ‘life or freedom would be threatened’ ” on account of one of the protected grounds if the applicant were returned to the applicant’s native country. Ramsameachire, 357 F.3d at 178 (quoting 8 U.S.C. § 1231(b)(3)(A)); see Edimo-Doualla, 464 F.3d at 281; Yan Fang Zhang v. Gonzales, 452 F.3d 167, 172 (2d Cir.2006). To obtain withholding of removal under the CAT, an applicant must show that it is more likely than not that the applicant would be tortured if removed. 8 C.F.R. § 208.16(c); see Edimo-Doualla, 464 F.3d at 281. Where, as here, the BIA affirms the decision of the IJ without issuing an opinion, this Court reviews the decision of the IJ directly, as the final agency determination. See Twum v. I.N.S., 411 F.3d 54, 58 (2d Cir.2005); Secaida-Rosales, 331 F.3d at 305; see also 8 C.F.R. § 1003.1(e)(4). Legal questions, including mixed questions of law and fact and the application of law to fact, are reviewed de novo. See Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir.2005); Secaida-Rosales, 331 F.3d at 307. This Court reviews the IJ’s factual findings under the substantial evidence standard; findings of fact are treated as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Zhou Yun Zhang v. U.S. I.N.S., 386 F.3d 66, 73 (2d Cir.2004). An IJ’s factual finding will be affirmed if it is “supported by evidence that is ‘reasonable, substantial, and probative’ when considered in light of the record as a whole.” Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113(2d Cir.2005) (quoting Diallo v. I.N.S., 232 F.3d 279, 287 (2d Cir.2000)). Despite the deference typically afforded IJ and BIA decisions, this Court “require[s] a certain minimum level of analysis from the IJ and BIA opinions denying asylum, and indeed must require such if judicial review is to be meaningful.” Poradisova, 420 F.3d at 77. Where the BIA has affirmed without issuing an opinion, our review is limited “ ‘to the reasoning of the IJ, and we will" }, { "docid": "22541042", "title": "", "text": "] (B.I.A. June 12, 2006), ajfg No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City Dec. 20, 2004). Petitioners timely appealed the BIA decisions to this Court. Because the separate appeals involve common issues of law and fact, we consolidate the cases for disposition. We conclude that substantial evidence supports the credibility rulings; however, we vacate the findings of frivolousness and remand the cases in order to give the BIA the opportunity to interpret and apply the relevant statutes and regulations governing frivolousness under the standards the BIA recently set forth in YL- 24 I. & N. Dec. 151. I. Adverse Credibility Determinations In Yang’s case, the BIA adopted and affirmed, then modified, the IJ’s decision. In such circumstances, we review the IJ’s decision minus the ground for denying relief that was rejected by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). Accordingly, we will address Yang’s asylum claim as if it were not barred by the one-year filing deadline, as did the BIA. In cases such as Lin’s where the BIA summarily affirms an IJ’s decision without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the reasoning and decision of the IJ directly, treating it as the final agency determination. See Ming Xia Chen v. BIA, 435 F.3d 141,144 (2d Cir.2006). We owe “particular deference” to an IJ’s credibility finding, “mindful that the law must entrust some official with responsibility to hear an applicant’s asylum claim, and the IJ has the unique advantage among all officials involved in the process of having heard directly from the applicant.” Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004), overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2nd Cir.2007) (en banc). Hence, our review of an IJ’s credibility assessment is an “exceedingly narrow inquiry to ensure that the IJ’s conclusions were not reached arbitrarily or capriciously ... [and] that credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice.” Id. at" }, { "docid": "22613352", "title": "", "text": "the BIA, arguing that the IJ “erred in not finding Respondent’s testimony credible,” in that he “placed too much weight on unreasonably minor points.” The BIA dismissed the appeal, concluding that there was “no clear error in the Immigration Judge’s factual findings regarding the nature of the respondent’s past experiences in Pakistan, and the likelihood of his being harmed in the future.” In re Mohammad Zaman, No. [ AXX XXX XXX ] (B.I.A. Jan. 22, 2007). It also found that “[t]he respondent’s political experiences were rightfully called into question by the Immigration Judge.” Id. Zaman petitions for review of the BIA’s order. II. Discussion A. Standard of Review When the BIA does not expressly “adopt” the IJ’s decision, but “its brief opinion closely tracks the IJ’s reasoning,” this Court may consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.2006). This Court reviews the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005). B. Diallo v. INS In Diallo, this Court found that, when evaluating the sufficiency of the evidence presented by an asylum candidate, an IJ must: (1) “decide explicitly” whether or not the candidate’s testimony was credible (without relying exclusively on the lack of corroborating evidence); and, if credible, (2) determine whether additional corroboration is nonetheless necessary for the candidate to meet his or her burden of proof. 232 F.3d at 290. This Court explained that an explicit credibility determination is important to ensure that an alien receives the “potential benefit” of succeeding on credible testimony alone, as well as to ensure that appellate review of such a determination is preserved. Id. at 287. Our review is" }, { "docid": "22396056", "title": "", "text": "concluded that petitioner appeared to have been “testifying from a rehearsed script of events” and that his story appeared to have been “fabricated.” Having determined that petitioner’s evidence could not be credited, the IJ found that petitioner had not met his burden of proof with respect to any of his claims for relief. With respect to petitioner’s asylum claim, the IJ made the further finding that, because petitioner had not demonstrated “by clear and convincing evidence” that he had entered the United States less than one year before filing his asylum application, petitioner’s application for asylum was untimely. In re Shu Wen Sun, No. [ A XX XXX XXX ] (Immig. Ct. Hartford June 9, 2004). Petitioner appealed to the BIA, which affirmed the IJ’s decision without opinion. In re Shu Wen Sun, No. [ A XX XXX XXX ] (B.I.A. Dec. 21, 2005). This petition for review followed. DISCUSSION When the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See, e.g., Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). I. Asylum Application The IJ denied petitioner’s asylum application upon finding that (1) the application was untimely and (2) petitioner did not qualify for any exceptions to the statutory filing deadline. We lack jurisdiction to review these determinations. See 8 U.S.C. § 1158(a)(3) (placing agency determinations as to the timeliness of an asylum application beyond judicial review); see also Gui Yin Liu v. INS, 508 F.3d 716, 720 (2d Cir.2007). In addition, while we do have jurisdiction to review “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), petitioner has raised no such arguments in his brief. Accordingly, we must dismiss for lack of subject matter jurisdiction the portion of his petition seeking to review the denial of his asylum claim by the IJ and the BIA. See Xiao Ji Chen v. U.S. Dep’t of" }, { "docid": "22298386", "title": "", "text": "Yan Chen, 417 F.3d at 271. Instead the BIA adopted the IJ’s reason for denying Passi’s withholding of removal claim — that country conditions had changed — to reject his asylum claim. Although we are reviewing the BIA’s decision, we find it informative in this case to look to the IJ’s decision as well to decipher the reasoning in which the BIA “concur[red]” just as we would if the BIA had merely modified or supplemented the IJ’s decision. We review the agency’s factual findings under the substantial evidence standard treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). We will, however, vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed, for example, where the agency’s determination was “based on an inaccurate perception of the record, omitting potentially significant facts.” Tambadou v. Gonzales, 446 F.3d 298, 302 (2d Cir.2006) (internal quotation marks omitted); see also Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005). We review de novo questions of law and the application of law to fact. See, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). The burden of proving eligibility for asylum rests on the applicant. 8 C.F.R. § 208.13(a). An applicant may qualify for asylum either because he has suffered past persecution or because he has a well-founded fear of future persecution. 8 C.F.R. § 208.13(b). A fear of persecution may be “well-founded even if there is only a slight, though discernible, chance of persecution.” Diallo v. INS, 232 F.3d 279, 284 (2d Cir.2000) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). This standard is considerably easier to meet than the standard for withholding of removal, which requires the applicant to establish that it is more likely than not that his “life or freedom would be threatened” on account of a protected ground. See 8 C.F.R. § 208.16(b); Ramsameachire v. Ashcroft, 357 F.3d 169, 178" }, { "docid": "22245028", "title": "", "text": "DENNIS JACOBS, Chief Judge: Petitioner Ying Li, a native and citizen of the People’s Republic of China, seeks review of a summary affirmance by the Board of Immigration Appeals (“BIA”) of the oral decision of an immigration judge (“IJ”), which denied her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). In re Li, Ying, No. [ A XX XXX XXX ] (B.I.A. Feb. 20, 2007), aff'g No. [ A XX XXX XXX ] (Immig. Ct. New York City, Aug. 9, 2005). Li’s asylum application is premised on her claim that the Chinese government persecuted her for supporting Falun Gong. The IJ determined that Li was not credible, chiefly on the ground that her account is implausible, and denied her applications on that basis. We conclude that the IJ’s adverse credibility determination is supported by substantial evidence. The IJ relied on several “valid” and “cogent” reasons for rejecting Li’s testimony as implausible. See Ming Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir.2006). While explanations are available for features of petitioner’s account that were found implausible, we review the entire record, not whether each unusual feature of the account can be explained or rationalized. See Borovikova v. U.S. Dep’t of Justice, 435 F.3d 151, 161 (2d Cir.2006). The IJ could conclude that Li’s account, taken all in all, is implausible; and so we cannot say that any reasonable adjudicator would be compelled to conclude that she testified credibly. Accordingly, the petition is denied. I. Ying Li was placed in removal proceedings in January 2005 when she attempted to enter the United States without valid travel documents. Li applied for asylum, withholding of removal, and relief under the CAT, claiming that the Chinese government persecuted her for her involvement with Falun Gong. Li’s account — as set forth in her asylum application and at her merits hearing — is as follows: Her uncle’s friend, a practitioner, introduced her to Falun Gong. Although Li had only a “basic understanding” of Falun Gong, she was “very interested” in it because “it [is] a good practice” and is" }, { "docid": "22663571", "title": "", "text": "JOSÉ A. CABRANES, Circuit Judge. We hereby grant the petition for rehearing of our January 6, 2006 opinion in this case, see Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144 (2d Cir.2006). In the January 6 opinion, under the heading “I. Asylum,” id. at 150-55, we expressed the view that “questions of law,” as the term is used in section 106(a)(1)(A)(iii) of the REAL ID Act of 2005 (“REAL ID Act”), Pub.L. No. 109-13, 119 Stat. 231, 302 (codified at 8 U.S.C. § 1252(a)(2)(D)) — in part defining the scope of our jurisdiction to review removal, deportation, or exclusion orders — refers only to “a narrow category of issues regarding statutory construction.” Xiao Ji Chen, 434 F.3d at 153 (internal quotation marks omitted). Upon consideration of the briefs submitted on this petition for rehearing, we conclude that the term “questions of law” is not so limited. See post at 323-32. We revise substantially our analysis in Part I of the earlier opinion as to what constitutes “questions of law” under section 106(a)(1)(A)(iii) of the REAL ID Act. We hereby vacate our prior opinion and issue this opinion in its place. Petitioner Xiao Ji Chen, a native and citizen of China, seeks review of. a September 25, 2002 order of the Board of Immigration Appeals (“BIA”) affirming the November 17, 2000 decision of Immigration Judge (“IJ”) Adam Opaciuch. In re Xiao Ji Chen, No. [ A XX XXX XXX ] (B.I.A. Sept. 25, 2002), aff'g No. [ A XX XXX XXX ] (Immig. Ct. N.Y. City Nov. 17, 2000) (“IJ Decision”). The IJ found petitioner’s application for asylum, which was filed more than one year after her arrival in the United States, untimely. See 8 U.S.C. § 1158(a)(2)(B). He further found that she had not established either “changed circumstances which materially affect[ed][her] eligibility for asylum” or the existence of “extraordinary circumstances” that would have excused her tardiness in filing her application. Id. § 1158(a)(2)(D). Finally, the IJ denied petitioner’s application for withholding of removal based on his finding that she failed to establish that were she to return" }, { "docid": "12003581", "title": "", "text": "Krasnoperov had not participated in the rapes, the IJ found him to be a persecutor based on actions that he admitted. The IJ also found that Krasnoperov had not met his burden of proof because he failed to submit certain documents and other documents were not authenticated and/or not in conformance with Russian records. Judge Holmes-Simmons also found the evidence insufficient to support Balachova’s claim and noted that changes had occurred in Russia in the thirteen years since both petitioners left. Finally, she denied the petitioners’ CAT claims because they “failed to establish that it’s more likely than not they’d be subject to torture if returned to their native country.” Both petitioners appealed to the BIA, which summarily affirmed the results of the IJ’s opinion. DISCUSSION 1. Standard of Review Because the BIA summarily affirmed the IJ’s decision, see 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as the final agency determination. E.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). However, an adverse credibility determination must be based on “specific, cogent reasons” that “bear a legitimate nexus to the finding.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted). A determination “based on flawed reasoning ... will not satisfy the substantial evidence standard,” and the agency’s use of “an inappropriately stringent standard when evaluating an applicant’s testimony constitutes legal, not factual error.” Id. We will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). However, where despite evident errors, we can confidently predict that the agency would adhere to the same result absent error, we need not remand. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.2006). Finally, de novo" }, { "docid": "22746282", "title": "", "text": "has relied in its opinion on an IJ’s adverse credibility analysis, a Court of Appeals may review both opinions); Xin Jie Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004) (same); cf. Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005) (noting that where the BIA declines to adopt portions of an IJ’s reasoning but affirms the IJ’s decision in every other respect, we review “the judgment of the IJ as modified by the BIA’s decision—that is, minus the single argument for denying relief that was rejected by the BIA”); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005) (“Where the BIA adopts the decision of the IJ and merely supplements the IJ’s decision ... we review the decision of the IJ as supplemented by the BIA.”) (citing Niam v. Ashcroft, 354 F.3d 652, 655 (7th Cir.2004)). We review an IJ’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary .... ”) (emphasis added); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004) (“[W]e will not disturb a factual finding if it is supported by ‘reasonable, substantial, and probative’ evidence in the record when considered as a whole.”) (internal quotation marks omitted). We afford “ ‘particular deference to the credibility determinations of the IJ.’ ” Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (quoting Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997)). Accordingly, our review does not permit us to engage in an independent evaluation of the cold record or ask ourselves whether, if we were sitting as fact finders, we would credit or discredit an applicant’s testimony. See Zhou Yun Zhang, 386 F.3d at 74 (“[T]he [reviewing] court may not itself hypothesize excuses for ... inconsistencies [in a petitioner’s testimony], nor may it justify the contradictions or explain away the improbabilities. Its limited power of review will not permit it to ‘reverse the BIA simply because [it] disagreed] with its evaluation" } ]

[ { "docid": "9698523", "title": "", "text": "the educational loan exemption to be disregarded. The authority to grant the discharge of a student loan debt — whether of the whole debt or only a portion thereof — must be conditioned upon a finding of undue hardship. Otherwise, § 523(a)(8) would be without practical effect. If § 105 allowed a discharge without meeting the test of undue hardship, Congress’ effort to make it harder to walk away from student loans would be thwarted. A “partial discharge” under § 105 might include ninety percent of the entire debt, or any other suitable portion, so long as the bankruptcy court found it “equitable.” Such a rule would make the law more unpredictable and results as among debtors more inconsistent than at present. The better approach is to permit a partial discharge only to the extent that it would be an undue hardship for that part of the loan obligation not to be discharged. Most definitions of undue hardship in the context of § 523(a)(8) encompass a good faith inquiry, in which the court “looks to see whether the debtor has tried to repay his student loan obligations since they were incurred, has made efforts to renegotiate the loans, to obtain deferments, and to minimize expenses and increase income.” In this case, the bankruptcy court’s determination that the debtor did not exhibit good faith is certainly supported by the record. Although her failure to make payments on the loan does not on its own show lack of good faith, the debtor’s refusal to minimize her expenses and maximize her income, described in detail in the bankruptcy court’s opinion, preclude a hardship discharge of any portion of the loan. While Mrs. Mort’s circumstances have been difficult, it is pellucid that she has never attempted to reconcile her economic life to the obligations of this loan. The bankruptcy court’s factual findings are correct, but in the absence of good faith, it was error to discharge any portion of the student loan debt. Accordingly, it is necessary to reverse the bankruptcy court’s decision, and remand the case with directions to deny the relief sought" } ]

[ { "docid": "19167813", "title": "", "text": "equitable powers of the Court. On the contrary, while she testified that certain portions of her life have been difficult, she has made no effort to repay her most recent student loans at a point in time when she is arguably at the most stable and promising stage of her life. Over the last half-decade, she has lived in a household whose income lies easily in the top 10% (perhaps even 5%>) of all households. Her only expenses are food and cable television. She is not disabled. She is no longer in therapy and is able to function normally without it. She even has the luxury of forgoing employment to care for her granddaughter or to alternatively contribute to that granddaughter’s daycare expenses without fear of losing her home or being unable to afford something to eat. Yet during this time, no effort has been made to repay her student loan obligations. The Court finds it difficult to grasp why the concept of equity, which encompasses a good faith inquiry, demands a discharge of Archibald’s normally nondischargeable debt. Id. 21. The Court also rejects Archibald’s argument that the amount of debt in this case demands at least an equitable partial discharge. Archibald asserts that she is entitled to a “fresh start.” This contrary to the concept of exceptions to discharge-ability. The Court sympathizes with Archibald, but is not convinced that her predicament is beyond her reasonable control. Archibald spent 17 of the last 22 years in school, most of that time without employment as a full-time student. During this time she carried with her the spectre of student loan debt. With the exception of several months in 1992, not once did this cause her enough anxiety to curtail her expenses and begin to repay any amount toward these loans. The Court recognizes that Archibald might not ever repay her entire student loan obligation, perhaps never even pay any part of it. One thing is clear, however. Absent a showing of undue hardship, she is not entitled to walk away from any of these obligations. Conclusion Based upon the foregoing, this" }, { "docid": "19167801", "title": "", "text": "receive a cancellation of the remainder of the balance of the loan. Under present law, it appears that such a discharge (at the end of the 25 years) could be subject to cancellation of indebtedness income for federal income tax purposes. 40. Under the Ford Program’s Income Contingent Repayment Plan, and assuming a debt of $98,000 at an interest rate of 8.25% and an income of $13,000 per year, Archibald’s estimated monthly payment would be approximately $73.50, which she could clearly afford to make. 41. ECMC is a non-profit corporation that defends student loans in bankruptcy cases for the federal government and other guaranty agencies. Of every dollar collected on Archibald’s student loans, 76 cents goes into a reserve fund (owned by the Department of Education) and 24 cents is deposited into ECMC’s operating account. If the Court discharges the Debtor’s obligations to ECMC, the Department of Education will not receive the funds that would have been otherwise deposited into the reserve fund. CONCLUSIONS OF LAW 1. Pursuant to 11 U.S.C. § 523(a)(8), the Court may discharge an otherwise nondischargeable student loan if excepting the debt from discharge will impose an undue hardship on the debtor or the debt- or’s dependents. 2. Archibald had the burden of proving that she qualifies for a “hardship discharge.” In re Roberson, 999 F.2d 1132, 1137 (7th Cir.1993), citing In re Webb, 132 B.R. 199, 201 (Bankr.M.D.Fla. 1991); In re Ealy, 78 B.R. 897, 898 (Bankr.C.D.Ill.1987). Archibald failed to carry this burden of proof. 3. In the Seventh Circuit, to prove undue hardship, a debtor must demonstrate that: (a) she cannot maintain, based on current income and expenses, a “minimal” standard of living for herself and her dependents if forced to repay the loans; (b) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (c) the debtor has made a good faith effort to repay the loans. Roberson, 999 F.2d at 1135. Analysis under part one of the Brunner/Roberson test 4. Archibald failed to prove that she" }, { "docid": "16436252", "title": "", "text": "make one payment on the loan. Ms. Roach has consistently made a good faith effort to obtain employment, to maximize her income, and to minimize her expenses. Under the more liberal interpretation of Brunner, Ms. Roach has proved the third prong of the Brunner test. B. Conclusion It is indeed a shame that this debtor has to be denied a discharge under the current state of the law when she has demonstrated her best effort to rehabilitate her life, is working at the best job now available to her, and is supporting several dependents from her own earnings under circumstances that clearly show she cannot maintain a minimal standard of living for herself and her dependents, if forced to repay the loans. The second prong of the Brunner test appropriately discharges the student loan debts of debtors whose dire financial condition is likely to continue to exist in the future. But it also penalizes those debtors, such as Ms. Roach, who strive to improve their condition and who may be able to improve their current state of affairs. However, so long as Congress continues to express in bankruptcy legislation its antipathy to the discharge of student loans, and until the Fifth Circuit adopts a test other than Brunnerj this court has no other course to follow. The court is aware that some courts have allowed a partial discharge of student loans when full payment would perpetuate hardship. This court disagrees with those cases, and cannot find any basis either in the language of the Bankruptcy Code, or in the reasoning of these decisions that would allow a partial discharge of a student loan. Instead, this court agrees with the decisions that hold that Section 523(a)(8) means what it says — a discharge of student loans is allowed only upon a showing of hardship that is “undue” — partial discharges are not permitted. Thus, the court must deny Ms. Roach the discharge of loans that she has worked diligently for and would be entitled to if her state of affairs, i.e. future potential income, did not look as bright as it" }, { "docid": "4595486", "title": "", "text": "(2) his and his dependents’ reasonably necessary living expenses; and (3) other relevant facts or circumstances unique to the case, prevent him from paying the student loans in question while still maintaining a minimal standard of living, even when aided by a discharge of other pre-petition debts. Lorenz v. Am. Educ. Servs., 337 B.R. 423, 430 (1st Cir. BAP 2006). Under either test, the initial focus is on the debtor’s current and future ability to repay the student loans. But the totality of the circumstances test allows the Court to consider the facts and circumstances unique to each case and to measure the impact of those facts and circumstances on the debt- or’s ability to pay now and in the future. While this inquiry would include the debt- or’s efforts to repay the loan, I am not persuaded that those efforts should rise to the level of a determinative factor. I am satisfied that the “totality of the circumstances” test frames the inquiry most appropriately. Applying that test to the matter before me, I find that the Debtor has not carried her burden of proving undue hardship. The Debtor’s education, particularly her certificate in medical assistance, qualifies her for employment in a variety of medical settings. She has worked in three health centers and in a pharmacy as a medical assistant or a pharmacy assistant. In each of those jobs, she was able to work part time or full time, ranging from twelve to forty hours per week, depending on the needs of the employer and her ability to work. Thus, she has training, experience, and education that provide her with an ability to earn money needed to support herself and her son. She has not shown that the income available from this work, especially as she gains experience, would be insufficient to permit her to pay down her student loan over time. The only real question is whether, given her illness, she will be able to work. With respect to her illness, the Debtor’s testimony, as buttressed by that of Dr. Felsenstein, makes it clear that the future of" }, { "docid": "19167807", "title": "", "text": "hardships that weigh against discharge. In re Conner, 89 B.R. 744, 749 (Bankr. N.D.Ill.1988) (Debtor’s financial aid to majority age daughters was “legally voluntary” and “must be regarded as self-imposed.”). 12. Archibald failed to show that many of her other expenses were necessary and did not constitute self-imposed hardships. The evidence suggested that many of these expenses were self-imposed and not necessary to maintain a minimal standard of living. 13. Archibald’s household situation also suggests a lack of good faith effort to repay her student loan obligations. Archibald testified that she has lived with Mr. Neal for the past four to five years. The couple’s combined income is over $100,000 per year. Yet, during this time Archibald has made no effort, however small, to repay her student loan obligations. It is also not inconceivable that Mr. Neil’s subsidization of Archibald’s expenses has had a negative impact on her motivation to find regular employment. 14. It would undermine the Roberson decision for the Court to ignore the fact that, by living with Mr. Neal, Archibald has been living a standard far above what is considered “minimum” for most Americans. Even if Mr. Neal has no obligation to repay her student loans, the facts indicate that Mr. Neal subsidizes s substantial portion of Archibald’s lifestyle. The Court recognizes that Mr. Neal has no obligation to repay Archibald’s student loans, but also realizes that to ignore this fact would create an anomaly in the law that would unfairly burden the U.S. taxpayers, many of whom are struggling to pay off similar student loans on household incomes that amount to less than a fifth of Archibald’s effective household income. Mr. Neal’s income, by the Plaintiffs own admission, has a substantial effect on Archibald’s actual or necessary expenses, and are therefore relevant to a determination of whether she can maintain a minimal standard of living. The Court will not deal with hypothetical. 15. The fact that the amount of Archibald’s outstanding student loan obligations is daunting by any standard is not lost on this Court, either. However, one reason they are so daunting is because" }, { "docid": "19167812", "title": "", "text": "more than the monthly amounts proscribed by the ICRP for the rest of the life of the loan. This is particularly evident when one considers that Mr. Neal pays for many of Archibald’s expenses. Request for Partial Discharge 20. The Court denies the Debtor’s request for partial discharge. For all of the reasons cited above, the Court finds that this Debtor has not put on sufficient evidence under Roberson for the Court to even consider the availability of a partial discharge. At a minimum, the Debtor would have had to establish all the elements of “undue hardship” for the Court to consider such relief. To allow a debtor to discharge a student loan debt without a showing of hardship would thwart Congress’ attempt to make it more difficult to abdicate such an obligation. Tennessee Student Assistance Corp. v. Mort, 272 B.R. 181, 184-85 (W.D.Va.2002). Only then could an inquiry into the equities of a debtor’s situation be addressed. Archibald has shown no reason as to why she should be allowed to avail herself of the equitable powers of the Court. On the contrary, while she testified that certain portions of her life have been difficult, she has made no effort to repay her most recent student loans at a point in time when she is arguably at the most stable and promising stage of her life. Over the last half-decade, she has lived in a household whose income lies easily in the top 10% (perhaps even 5%>) of all households. Her only expenses are food and cable television. She is not disabled. She is no longer in therapy and is able to function normally without it. She even has the luxury of forgoing employment to care for her granddaughter or to alternatively contribute to that granddaughter’s daycare expenses without fear of losing her home or being unable to afford something to eat. Yet during this time, no effort has been made to repay her student loan obligations. The Court finds it difficult to grasp why the concept of equity, which encompasses a good faith inquiry, demands a discharge of Archibald’s" }, { "docid": "19167803", "title": "", "text": "cannot maintain a “minimal” standard of living for herself. She failed to show that she has maximized her income. Her own testimony suggested that she was capable of earning over twice as much as she currently earns. The documentary evidence that she submitted to the Court as evidence suggested that her salary could be significantly greater, despite the fact that the figures used are not inflation adjuster from 1998. 5. Archibald failed to demonstrate that she took adequate steps to obtain the best paying employment. While she did produce evidence of an effort to find employment, her effort fell far short of that necessary to meet her burden under the Brunner/Roberson test. As indicated in the facts section, Archibald testified that after graduating she sent between 4 and 10 resumes to potential employers. The Court notes that she did describe some less formal “word of mouth” efforts to obtain employment. Given her qualifications, if Archibald could truly not maintain a minimum standard of living, surely a more determined effort should be made to maximize her earning potential. The evidence produced was not sufficient to suggest that Archibald has diligently tried to maximize her employment or her income. With her education and intelligence, at a minimum, Archibald could make a greater income merely by obtaining employment outside of her field. Rather, the evidence suggests a lack of motivation to find full time employment most likely due to the fact that most of her basic expenses are paid for by her “significant other,” Mr. Neal. 6. Archibald failed to adequately document or testify to her expenses in a manner sufficient for this Court to grant an undue hardship discharge. Many of the expenses she incurs, while not extravagant, do not suggest that she is currently minimizing her expenses. By her own testimony, Mr. Neal pays for “everything,” requiring her to pay only for certain food and household goods ($250 per month) and the cable bill ($150 per month). The Court notes while that she is not required to pay for anything on Mr. Neal’s behalf, even if Mr. Neal does pay for" }, { "docid": "12625351", "title": "", "text": "$493.00 Mortgage (includes insurance and taxes) $75.00 Electric $70.00 Gas $30.00 Water/Sewer $40.00 Telephone $35.00 Cable $10.00 Home Maintenance $500.00 Food $60.00 Clothing $15.00 Laundry $20.00 Medical/Dental $15.00 Recreation $10.00 Charitable Contributions $60.00 Auto Insurance $250.00 Installment Payments made by Debtor’s husband $50.00 Mise. With regards to these above-stated expenses, the Debtor maintains that she and her husband, at this time, do not earn enough money to cover such expenses. As a consequence, the Debtor related to the Court that certain family members, as they have also done in the past, help the Debtor and her husband out financially. According to the Debtor, without such help, the Debtor and her husband would not be able to maintain a minimal standard of living based upon their current income and expenses. Furthermore, the Debtor related to the Court that she does not foresee her financial situation improving much in the future. As a result, the Debt- or maintains that she is entitled to have her student loans discharged on the basis of undue hardship. The Court, however, after considering the foregoing facts, must disagree. In particular, the Court finds, for the following reasons, that the Debtor has failed to meet her burden, as a matter of law, under the second and third prongs of the Brunner Test. Accordingly, the Debtor is not entitled to receive an undue hardship discharge of her student loan obligations under § 523(a)(8). However, as will be explained, the Court will permit a portion of the Debtor’s student loan obligation to be discharged in accordance with this Court’s equitable powers under 11 U.S.C. § 105(a). LEGAL ANALYSIS In order for a debtor to have his or her student loan obligation discharged, the financial hardship that the debtor experiences must be undue; this is, the hardship must be more than the garden variety hardship experienced by most of the debtors who seek bankruptcy relief. Luna v. Educ. Credit Management Corp. (In re Luna), 236 B.R. 291, 293-94 (Bankr. M.D.Fla.1999). To this end, the second prong of the Brunner Test requires that a debtor establish that there exist additional circumstances" }, { "docid": "19167808", "title": "", "text": "been living a standard far above what is considered “minimum” for most Americans. Even if Mr. Neal has no obligation to repay her student loans, the facts indicate that Mr. Neal subsidizes s substantial portion of Archibald’s lifestyle. The Court recognizes that Mr. Neal has no obligation to repay Archibald’s student loans, but also realizes that to ignore this fact would create an anomaly in the law that would unfairly burden the U.S. taxpayers, many of whom are struggling to pay off similar student loans on household incomes that amount to less than a fifth of Archibald’s effective household income. Mr. Neal’s income, by the Plaintiffs own admission, has a substantial effect on Archibald’s actual or necessary expenses, and are therefore relevant to a determination of whether she can maintain a minimal standard of living. The Court will not deal with hypothetical. 15. The fact that the amount of Archibald’s outstanding student loan obligations is daunting by any standard is not lost on this Court, either. However, one reason they are so daunting is because Archibald failed to pay even the interest on these loans when she had the opportunity, whether it be from funds saved and pinched, or from scholarship award money granted to her. Furthermore, the Court notes that the majority of these loans were used to obtain Archibald’s recent graduate degree, suggesting that Archibald was fully aware of the amounts she would have to repay upon graduating. Regardless, the amount of the loans in question do not alter Archibald’s burden of proof in this case. 16. Finally, the Court notes that Archibald failed to avail herself of the various repayment programs available. These programs offer reduced payments over an extended period of time, with a forgiveness of the remaining debt at the expiration of the payment period. 17. The tax implications of a discharge under the ICRP are speculative at best given that the ICRP is approximately eight years old. However, it does appear that under current tax law it is not unlikely that a discharge at the end of such a program could be considered cancellation" }, { "docid": "19167806", "title": "", "text": "show that any legitimate problems she may have had in obtaining employment initially will persist in the future. Should she find more lucrative employment during the repayment period, a discharge of her student loan obligations now would be a disservice to the U.S. taxpayer. Analysis under Part three of the Brunner/Roberson test 10. Archibald has not met her burden to prove that she made a good faith ■effort to repay her loans. Although she testifies that she did at least make a few payments on her federally guaranteed student loan debt, the evidence indicates that she also took on a number of self-imposed hardships during other portions of the repayment period, instead of choosing to repay some amount toward her loans. 11. The evidence indicates that after graduating, Archibald chose to take care of her granddaughter in favor of obtaining employment. She also admittedly spent substantial sums on her granddaughter for clothes and other items rather than repay her student loan obligations. She has no legal obligation to make these expenditures and they constitute self-imposed hardships that weigh against discharge. In re Conner, 89 B.R. 744, 749 (Bankr. N.D.Ill.1988) (Debtor’s financial aid to majority age daughters was “legally voluntary” and “must be regarded as self-imposed.”). 12. Archibald failed to show that many of her other expenses were necessary and did not constitute self-imposed hardships. The evidence suggested that many of these expenses were self-imposed and not necessary to maintain a minimal standard of living. 13. Archibald’s household situation also suggests a lack of good faith effort to repay her student loan obligations. Archibald testified that she has lived with Mr. Neal for the past four to five years. The couple’s combined income is over $100,000 per year. Yet, during this time Archibald has made no effort, however small, to repay her student loan obligations. It is also not inconceivable that Mr. Neil’s subsidization of Archibald’s expenses has had a negative impact on her motivation to find regular employment. 14. It would undermine the Roberson decision for the Court to ignore the fact that, by living with Mr. Neal, Archibald has" }, { "docid": "9698518", "title": "", "text": "debt because at that time the statute required a loan repayment period of seven years before such a loan was eligible for discharge. In 1998, Congress eliminated the seven-year exception. The debtor has never made any voluntary payments on her student loan, and the parties stipulated that the outstanding balance at the time she filed the current Chapter 7 petition was $18,263.40. The Income Contingent Repayment Plan administered by the Department of Education to assist low-income debtors burdened by student loans would allow Mrs. Mort to make payments of $142.97 per month based on her current income, but she has rejected that program as unaffordable to her. The total mortgage payment on her home is $700 per month, of which she pays $400 and her husband pays the balance, but she does not want to give up the house and live in a smaller apartment. The bankruptcy court considered the debtor’s request for discharge under the test established in Brunner v. New York State Higher Education Services Corp. According to Brunner, in order to show “undue hardship” a debtor must prove: (1) that the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debt- or has made good faith efforts to repay the loans. The bankruptcy court found'that the debt- or had failed to meet all of the prongs of this test, and in particular had failed to show that she “ha[d] ever really made a sincere effort to pay ... or that she has ever recognized or accepted the principle that she ought to devote her financial resources ... to satisfying what she’s legally obligated to do before utilizing them for those matters which have first call upon her heart....” In spite of its factual findings, the bankruptcy court held that it had the general equitable power under § 105 of the" }, { "docid": "19167804", "title": "", "text": "earning potential. The evidence produced was not sufficient to suggest that Archibald has diligently tried to maximize her employment or her income. With her education and intelligence, at a minimum, Archibald could make a greater income merely by obtaining employment outside of her field. Rather, the evidence suggests a lack of motivation to find full time employment most likely due to the fact that most of her basic expenses are paid for by her “significant other,” Mr. Neal. 6. Archibald failed to adequately document or testify to her expenses in a manner sufficient for this Court to grant an undue hardship discharge. Many of the expenses she incurs, while not extravagant, do not suggest that she is currently minimizing her expenses. By her own testimony, Mr. Neal pays for “everything,” requiring her to pay only for certain food and household goods ($250 per month) and the cable bill ($150 per month). The Court notes while that she is not required to pay for anything on Mr. Neal’s behalf, even if Mr. Neal does pay for her other necessities, her expenses suggest that she is spending a significant amount of her income on discretionary items. Furthermore, Archibald spends a significant amount of her monthly income on her granddaughter, either in the form of clothes, toys, or daycare costs. This is discretionary on her part. Analysis under part two of the Brunner/Roberson test 7. Archibald has failed to show that her situation presents a “certainty of hopelessness.” Indeed, she could consolidate her loans over a period of 25 years under an extended repayment program or the Ford Program’s Income Contingent Repayment Plan. 8. Archibald testified that she is gaining experience from her present employment and hopes to use that experience to obtain a further license in her field. This alone suggests that Archibald is contemplating advancement with a commensurate increase in salary. She indicated that in the first few years after she graduated, her lack of experience posed an obstacle to better employment. She is currently obtaining the needed experience. 9. Having graduated only a few short years ago, Archibald failed to" }, { "docid": "9698519", "title": "", "text": "“undue hardship” a debtor must prove: (1) that the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debt- or has made good faith efforts to repay the loans. The bankruptcy court found'that the debt- or had failed to meet all of the prongs of this test, and in particular had failed to show that she “ha[d] ever really made a sincere effort to pay ... or that she has ever recognized or accepted the principle that she ought to devote her financial resources ... to satisfying what she’s legally obligated to do before utilizing them for those matters which have first call upon her heart....” In spite of its factual findings, the bankruptcy court held that it had the general equitable power under § 105 of the Bankruptcy Code to partially discharge the debt because it found that Mrs. Mort did not have the present ability to pay the entire debt, including interest and collection costs. Accordingly, the bankruptcy court discharged all interest through April 15, 2004, as well as all attorneys’ fees, ex penses and collection costs. In addition, the bankruptcy court fixed monthly payment amounts, beginning at sixty dollars per month, and increasing over time, until the debtor reaches the age of sixty-five, at which time her obligation to make monthly payments shall cease. Finally, the bankruptcy court allowed the debtor to petition the court to reopen the proceedings if future circumstances created an undue hardship in regard to the obligations imposed by the court’s order. II In this appeal, TSAC contends that the bankruptcy court erred in partially discharging the loan debt in rebanee on § 105. Section 523(a)(8) provides that a discharge otherwise granted to a debtor does not discharge the debtor from any debt for an educational loan “unless excepting such debt from discharge under this paragraph" }, { "docid": "19167811", "title": "", "text": "not conclude that the ICRP is the determinative factor in making a determination in this case, but given the speculative nature of the possible future income tax liability of the Debtor, it is a legitimate factor for a court to consider. In the twenty-five years that Archibald has to repay under any extended plan, she will likely obtain employment more in line with her educational qualifications, making the income tax treatment of a fully or near fully paid off loan negligi ble. In addition, in the event of her death or disability, the income tax treatment of a discharge in 25 years would be moot. There are simply too many unknown possibilities for the Court to disregard the fact that Archibald presently has options within her means to repay her student loan obligations. 19. Finally, focusing on the tax liability of the ICRP also ignores the fact that when Archibald’s salary climbs into the range she feels it could ($30,000 per year), she can minimize or eliminate any future tax liability on discharge by repaying more than the monthly amounts proscribed by the ICRP for the rest of the life of the loan. This is particularly evident when one considers that Mr. Neal pays for many of Archibald’s expenses. Request for Partial Discharge 20. The Court denies the Debtor’s request for partial discharge. For all of the reasons cited above, the Court finds that this Debtor has not put on sufficient evidence under Roberson for the Court to even consider the availability of a partial discharge. At a minimum, the Debtor would have had to establish all the elements of “undue hardship” for the Court to consider such relief. To allow a debtor to discharge a student loan debt without a showing of hardship would thwart Congress’ attempt to make it more difficult to abdicate such an obligation. Tennessee Student Assistance Corp. v. Mort, 272 B.R. 181, 184-85 (W.D.Va.2002). Only then could an inquiry into the equities of a debtor’s situation be addressed. Archibald has shown no reason as to why she should be allowed to avail herself of the" }, { "docid": "17906606", "title": "", "text": "before considering any payment on her student loan, of $57.00. Mrs. Boylen does not receive any child support from either of her two former hus bands. The Court has examined the various items in the budget and finds the amounts allocated to be very reasonable. The Court further notes that the budget makes no allowance for food due to the fact that she is receiving food stamps. The budget also makes no allowance for various household items and toiletries which are not covered by food stamps. Were debtor to obtain employment in the future, no doubt she would lose at least a portion of her food stamp allotment and other welfare benefits due to her job and she would also incur expenses for child care while she is at work. As the debtor’s economic life presently stands, debtor is not capable of maintaining even a minimal standard of living for herself and her five dependents even with the help which she receives from the Government. The Court also finds that even if debtor were to find a job her economic life would not be appreciably bettered due to the fact that she would lose some, if not all, of her welfare benefits and also would be forced to incur expenses for child care. The student loan debt in question represents approximately twenty-five percent of the debt sought to be discharged through this bankruptcy. As such, this Court finds that the within bankruptcy^ “a result of a true need for bankruptcy relief rather than an abuse of the bankruptcy system”. In Re Wegfehrt, supra, at 830., citing H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 133 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6094. Therefore, this Court finds that the repayment of the student loan would impose an undue hardship on debtor, Lucille Boylen. As this Court earlier noted, the repayment of the student loan would also impose an undue hardship on plaintiff-debtor, John Boylen. Said debtor is presently unemployed and is receiving the sum of $632.00 in unemployment compensation monthly. The debtor has submitted a budget to this Court which" }, { "docid": "6315146", "title": "", "text": "honor the commitment. “Congress meant the extinguishment of student loans to be an available remedy to those severely disadvantaged economically as a result of unique factors which are so much a part of the bankrupt’s life, present and in the foreseeable future, that the expectation of repayment is virtually non-existent unless by the effort the bankrupt strips himself of all that makes life worth living.” In re Kohn, supra at 1008. (footnote omitted) Reviewing the facts of this case in light of the above criteria, it is clear that this Debtor’s financial condition contains no unique set of circumstances which would render the educational loans dischargeable in bankruptcy. Specifically, the evidence presented revealed a net surplus of income over expenditures in the amount of $37.13. This surplus of income was present even though there was an extraordinary high phone bill and extraordinary expenditures in clothing for the month surveyed. This Court sees no reason why under careful budgeting Archie will not be able to repay the loans in question. Further, to succeed on a defense of undue hardship in discharging the educational loans, good faith is implicit in § 523(a)(8). In re Price, 1 B.R. 768, 1 CBC 2d 647, 648-49 (Bkrtcy.D.Hawaii 1980). Good faith has not been demonstrated by the Debtor in this case. She made no effort to contact the Plaintiffs when she left school nor did she attempt to negotiate any repayment programs with the Plaintiffs. She moved into a more expensive apartment and allowed her brother to live there gratuitously. While this Court is not unsympathetic to the Debtor’s sheltering and caring of her brother, it should not allow her to do so at the expense of the educational loan programs. . In applying the four points of the Matthews case, this Debtor’s circumstances do not mandate a discharge of the educational loans. While the Debtor has not accumulated any appreciable wealth, she has obtained steady employment for approximately a year and is currently due to be reviewed for a raise. The Debtor has sufficient income to maintain a minimal standard of living and in fact" }, { "docid": "18017343", "title": "", "text": "Schreiner, a paralegal for the ECMC, testified at trial that the purpose of the William D. Ford Program was to allow student loan borrowers a “fresh start.” 17. At the time of the trial, evidence was submitted that Durrani’s payment under the ICRP would be $331.33, and would drop to $54.33 after her retirement. 18. Durrani testified that she often called whichever entity was currently holding her loan to discuss the status of her loan and payments she had made or would be making. 19. The parties agree that since Durra-ni’s household size has been reduced from two to one, her estimated payment under the ICRP would be between $390.00 and $395.00. CONCLUSIONS OF LAW A. The Brunner Test is the Standard for Determining Whether Excepting a Student Loan From Discharge Would Impose an Undue Hardship on the Debtor, and Has Been Adopted by the Seventh Circuit. When considering a request for relief under 11 U.S.C. § 523(a)(8), this court is bound by Matter of Roberson, 999 F.2d 1132 (7th Cir.1993), which adopted the Brunner test used by several circuits. Brunner v. New York State Higher Education Services Corp., 831 F.2d 395 (2nd Cir.1987) (per curiam). The three questions set forth in Brunner frame the issue of whether excepting a student loan debt from discharge will impose an undue hardship on the debtor. Accordingly, the issues that must be resolved in the instant proceeding are: 1. Whether, based on current income and expenses, Durrani can maintain a “minimal” standard of living for herself if forced to repay the loan; 2. Whether additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the loan; and 3. Whether Durrani has made good faith efforts to repay the loan. Durrani has the burden of proving each element of the Brunner test by a preponderance of the evidence. Although the Brunner test uses objective standards, the decision is still ultimately at the discretion of this Court to use its “intuitive” sense of what is a “minimal” standard of living and what is" }, { "docid": "12658244", "title": "", "text": "significantly in personal and financial matters or that the debtor will endure a restricted budget. Elmore, 230 B.R. at 26. Moreover, even if the debtor shows a current inability to pay the student loan, that is not by itself sufficient to establish “undue hardship.” Rather, the second requirement of additional, exceptional circumstances suggests that the debtor must also evidence a “continuing inability to repay over an extended period of time.” Brunner, 831 F.2d at 396. This further requirement serves the purpose of making the discharge of student loans more difficult to obtain and insures that the hardship is “undue.” Id. The type of “additional circumstance” that would affect the debtor’s continuing ability to repay would be a circumstance that impacted on the debtor’s future earning potential but which was either not present when the debtor applied for the loans or has since been exacerbated. Otherwise, the debtor could have calculated that factor into its cost-benefit analysis at the time the debtor obtained the loan. An example of an additional circumstance impacting on the debtor’s future earnings would be if the debtor experienced an illness, developed a disability, or became responsible for a large number of dependents after receiving the loan. The third element requires a showing that the debtor made a good faith effort to repay the student loan. In considering this factor, in addition to reviewing actual payments made on the loan, courts consider whether the debtor has attempted other remedies available such as requesting deferment of payment. Brunner, 831 F.2d at 397. Moreover, to establish good faith, the default cannot stem from the debtor’s wilful conduct or the debtor’s neglect. Rather, it must result from factors beyond the debtor’s reasonable control. Elmore, 230 B.R. at 27. The debtor must prove its efforts “to maximize income and minimize expenses.” Elmore, 230 B.R. at 27. Applying the Brunner analysis to the facts of this case, even allowing for the Debtor’s own higher estimate at trial of her current monthly expenses, she still has approximately $550.00 available, a major portion of which could be applied towards the payment of her student" }, { "docid": "19167802", "title": "", "text": "may discharge an otherwise nondischargeable student loan if excepting the debt from discharge will impose an undue hardship on the debtor or the debt- or’s dependents. 2. Archibald had the burden of proving that she qualifies for a “hardship discharge.” In re Roberson, 999 F.2d 1132, 1137 (7th Cir.1993), citing In re Webb, 132 B.R. 199, 201 (Bankr.M.D.Fla. 1991); In re Ealy, 78 B.R. 897, 898 (Bankr.C.D.Ill.1987). Archibald failed to carry this burden of proof. 3. In the Seventh Circuit, to prove undue hardship, a debtor must demonstrate that: (a) she cannot maintain, based on current income and expenses, a “minimal” standard of living for herself and her dependents if forced to repay the loans; (b) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (c) the debtor has made a good faith effort to repay the loans. Roberson, 999 F.2d at 1135. Analysis under part one of the Brunner/Roberson test 4. Archibald failed to prove that she cannot maintain a “minimal” standard of living for herself. She failed to show that she has maximized her income. Her own testimony suggested that she was capable of earning over twice as much as she currently earns. The documentary evidence that she submitted to the Court as evidence suggested that her salary could be significantly greater, despite the fact that the figures used are not inflation adjuster from 1998. 5. Archibald failed to demonstrate that she took adequate steps to obtain the best paying employment. While she did produce evidence of an effort to find employment, her effort fell far short of that necessary to meet her burden under the Brunner/Roberson test. As indicated in the facts section, Archibald testified that after graduating she sent between 4 and 10 resumes to potential employers. The Court notes that she did describe some less formal “word of mouth” efforts to obtain employment. Given her qualifications, if Archibald could truly not maintain a minimum standard of living, surely a more determined effort should be made to maximize her" }, { "docid": "19167810", "title": "", "text": "of indebtedness income to the debtor. Despite this, the availability of the ICRP is still a factor to be considered in the Brunner/Roberson analysis. Several courts have addressed this, finding that any possible income tax liability in the future is too speculative to rule out the feasibility of the ICRP. Dept of Education v. Rose (In re Rose), 227 B.R. 518, 525-526 (W.D.Mo.1998) (Stating that “the 25-year option should be considered” and that the potential for a large income tax burden can be ameliorated given the IRS’s “authority to forgive tax debt through offers of compromise if there is doubt as to collectability” under 26 C.F.R. § 301.7122-1.) Moreover, Archibald overstates the possible tax implications — she would clearly not have to pay a tax equal to the entire amount can-celled — at most, it would be the amount cancelled multiplied by her applicable tax rate. 18. The charge of this Court under § 523(a)(8) is to determine the issue of undue hardship as of today, not some date in the future. The Court does not conclude that the ICRP is the determinative factor in making a determination in this case, but given the speculative nature of the possible future income tax liability of the Debtor, it is a legitimate factor for a court to consider. In the twenty-five years that Archibald has to repay under any extended plan, she will likely obtain employment more in line with her educational qualifications, making the income tax treatment of a fully or near fully paid off loan negligi ble. In addition, in the event of her death or disability, the income tax treatment of a discharge in 25 years would be moot. There are simply too many unknown possibilities for the Court to disregard the fact that Archibald presently has options within her means to repay her student loan obligations. 19. Finally, focusing on the tax liability of the ICRP also ignores the fact that when Archibald’s salary climbs into the range she feels it could ($30,000 per year), she can minimize or eliminate any future tax liability on discharge by repaying" } ]

[ { "docid": "21184945", "title": "", "text": "number of billable hours recorded [the plaintiffs] counsel.” Perdue, 559 U.S. at 553, 130 S.Ct. 1662. In other words, any consideration, of the relative complexity of the present fees litigation as compared to the plaintiffs underlying administrative action is already incorporated into the reasonableness of the number of hours spent in litigating her request for fees before this Court. 2. The Plaintiff’s Voluntary Discount of the Hourly Rate Approved by this Court for his Fees-on-Fees Request is Reasonable The plaintiff has not requested reimbursement ' for fees-on-fees at three-quarters of the USAO Laffey Matrix rate applied to his'counsel’s successful efforts in his underlying administrative action. Instead, in. an effort to expedite payment and reduce litigation costs, the plaintiff requests reimbursement for fees-on-fees at only half of the applicable USAO Laffey Matrix rate. As explained above, because the plaintiffs successful fee application was “part of the same ‘action’ as the underlying educational dispute [for which reasonable fees have already been awarded],” Kaseman, 444 F.3d at 641-42, the fee rate already approved by the Court without objection from District may also be applied to calculate outstanding fees-on-fees. As such, the plaintiffs present request for an even lower hourly rate for work undertaken before this Court carries a strong presumption of reasonableness. Moreover, because the plaintiffs discounted rate falls squarely within the range deemed reasonable in IDEA litigation in this jurisdiction, .the District’s objection to this proposed rate must ultimately fail. The IDEA requires that awarded attorneys’ fees be “based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished,” 20 U.S.C. § 1415(i)(3)(C), and the D.C. Circuit has observed that the burden is on the fee applicant to ‘“produce satisfactory evidence — in addition to the attorney’s own affidavits — that the. requested rates are in line with those prevailing in the community' for similar services by lawyers of reasonably comparable skill, experience and reputation.’ ” Eley, 793 F.3d at 100 (quoting Blum, 465 U.S. at 895 n. 11, 104 S.Ct. 1541) (emphasis in original); see also Nat'l Ass’n of Concerned" } ]

[ { "docid": "20385040", "title": "", "text": "litigation). In contrast, the undersigned’s January 11, 2012 Order noted that administrative proceedings under IDEA do require specialized expertise and experience. (See Pis.’ Mot. for Attorney Fees, Ex. 1.) Following these two prior decisions, the hourly rate for fee litigation should be less than the rate for work in the underlying administrative proceeding. Furthermore, Plaintiffs have not demonstrated the complexity of the fee litigation. Accordingly, the undersigned holds that Plaintiffs are entitled to half of the applicable rate under the Laffey Matrix, or $237.50 per hour for work prior to June 1, 2011 and $247.50 for work on or after June 1, 2011. Williams, Jester’s paralegal, is entitled to an hourly rate of $140.00 per hour under the Laffey Matrix. Williams prepared the attorney fee invoice for the Motion for Attorney Fees. In the January 11, 2012 Order, the undersigned awarded Williams three-quarters of the Laffey rate. Because Williams’ work in this case is the same type of work done previously, the Court will award Williams three-quarter of the Laffey rate here, or $105.00 per hour. D. Calculation After making the above modifications, Jester logged 24.9 hours prior to June 1, 2011 for which half of the relevant hourly rate under the Laffey Matrix is $237.50 per hour. Jester logged 11.9 hours on or after June 1, 2011, for which half of the relevant hourly rate under the Laffey Matrix is $247.50 per hour. Williams logged 0.7 hours after June 1, 2011 for which three-quarters of the relevant hourly rate under the Laffey Matrix is $105.00 per hour. Finally, Jester logged 1.8 hours of travel time at half of the hourly rate otherwise awarded, equaling $118.75 per hour. The total amount Plaintiffs are entitled to for attorneys’ fees is $9,146.25. E. Costs Plaintiffs log $350.00 as reimbursement for the “Complaint Filing Fee.” (Compl.; PL’s Mot. for Attorney Fees, Ex. 4 at 3.) Plaintiffs also request reimbursement of $100.00 in total for Service of Process Fees on the Mayor and the Attorney General. (Pis.’ Supplemental Motion [24].) Plaintiff will be granted those fees. See LCvR 54.1(d) (costs of service of summons" }, { "docid": "161787", "title": "", "text": "updated since October 2006. .Without any evidence indicating why the rates set by the Public Schools should be considered the prevailing market rate, the Court must reject the defendant’s contention that its guidelines are determinative of the appropriate hourly rate. Instead, this Court will reduce the hourly rates at issue to one half of the maximum applicable Laffey rates. Other judges in this district have similarly reduced the applicable Laffey rate for uncomplicated IDEA litigation. See, e.g., Wright, 883 F.Supp.2d at 135-36 (reducing rate to half of the maximum Laffey rate for fee litigation); see also, e.g., Rooths, 802 F.Supp.2d at 63 (reducing rate to three-quarters of the maximum Laffey rate). According to the current' Laffey Matrix, the prevailing hourly wage for someone with over twenty years of experience should be $475.00 for work done prior to June 1, 2011, and $495.00 for any work done thereafter. While the Court recognizes that the requested hourly rates fall below the applicable Laffey rates, this Court finds these rates to be unreasonable in light of the uncomplicated issues involved in this litigation, and thus will reduce the hourly rates to one half of the maximum set by the Laffey Matrix. Therefore, the plaintiffs are entitled to receive an hourly rate of $237.50 per hour for work done by Ms. Jester prior to June 1, 2011, and $247.50 per hour for any work done thereafter. Likewise, the hourly rate requested for work performed by Ms. Jester’s paralegal, Mery Williams, will be reduced to $70.00 for work done after June 1, 2011, III. CONCLUSION Based on the foregoing reasons, the plaintiffs’ motion for attorneys’ fees is granted in part and denied in part. SO ORDERED this 19th day of December, 2012. ■ . In addition to the filings already referenced, the Court considered the following submissions in rendering its decision: (1) Points and Authorities in Support of Plaintiffs' Motion for an Award of Attorney's Fees and Costs (\"Pis.' Mem.”); (2) Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for an Award of Attorney’s Fees and Costs (“Def.'s Mem.”); and (3) Plaintiff’s [sic]" }, { "docid": "21184922", "title": "", "text": "following a three-day evidentiary hearing in June 2014, the plaintiff prevailed on all counts in her administrative action, successfully obtaining both an independent assessment of her child’s disability and a reevaluation of the child’s educational needs, as well as more than seventy hours of compensatory education in the form of one-on-one tutoring for her child. Id. Having prevailed in her administrative action, the plaintiff filed this action on January 30, 2015, to assert her statutory right as a prevailing parent under the IDEA, 20 U.S.C. § 1415(i)(3)(B)(i)(I), to seek an award of reasonable attorneys’ fees and costs. Jones, 2015 WL 5093559, at *4; Compl, ECF No. 1. Following referral, a Magistrate Judge on this Court issued a Report and Recommendation (“R & R”) recommending that the plaintiff be awarded $45,272.77 in attorneys’ fees and costs — all of her requested relief. Jones, 2015 WL 5093559, at ”1, *7. The plaintiff voluntarily chose to request attorneys’ fees at the rate of $345 per hour, which is three-quarters of the rate applicable to her attorney on the U.S. Attorney’s Office Laf-fey Matrix (“USAO Laffey Matrix”) , id. at *5, after indicating that this rate was counsel’s normal billing rate for work performed during the period when services were rendered to the plaintiff, see Decl. of Domiento C.R. Hill, ¶¶ 15-16, EOF No. 10-14. The District did not challenge the hourly rate proffered as reasonable by the plaintiff but instead • ultimately disputed, unsuccessfully, only two of dozens of billing entries submitted by the plaintiffs attorney in connection with her successful administrative action. Jones, 2015 WL 5093559, at *6. After neither party filed a timely objection, this Court adopted the R & R in full on August 18, 2015. See id. at *1. Having prevailed in her action to obtain attorneys’ fees arising from the administrative proceedings, the plaintiff has now moved, pursuant to Federal Rule of Civil Procedure 54(d)(2)(B), to obtain’ reimbursement of $10,468.50 of attorneys’ fees and costs incurred in litigating in federal court her successful petition for fees and costs. See Pl.’s Mot. at 1. II. LEGAL STANDARD The. IDEA" }, { "docid": "20385041", "title": "", "text": "hour. D. Calculation After making the above modifications, Jester logged 24.9 hours prior to June 1, 2011 for which half of the relevant hourly rate under the Laffey Matrix is $237.50 per hour. Jester logged 11.9 hours on or after June 1, 2011, for which half of the relevant hourly rate under the Laffey Matrix is $247.50 per hour. Williams logged 0.7 hours after June 1, 2011 for which three-quarters of the relevant hourly rate under the Laffey Matrix is $105.00 per hour. Finally, Jester logged 1.8 hours of travel time at half of the hourly rate otherwise awarded, equaling $118.75 per hour. The total amount Plaintiffs are entitled to for attorneys’ fees is $9,146.25. E. Costs Plaintiffs log $350.00 as reimbursement for the “Complaint Filing Fee.” (Compl.; PL’s Mot. for Attorney Fees, Ex. 4 at 3.) Plaintiffs also request reimbursement of $100.00 in total for Service of Process Fees on the Mayor and the Attorney General. (Pis.’ Supplemental Motion [24].) Plaintiff will be granted those fees. See LCvR 54.1(d) (costs of service of summons and complaint are costs taxable by the clerk) Lillbask ex rel. Mauclaire v. Connecticut Dept. of Educ., No. 3:97-cv-1202, 2006 WL 752872 (D.Conn. Mar. 17, 2006) (granting costs for filing fee and service of process). Plaintiffs are also granted fax and copying costs at $0.15 per page and mileage at $0,558 per mile. Based on Jester’s time sheets, these costs total $48.89. Finally, Plaintiffs request $4.00 for Jester’s parking meter during the hearing before the undersigned and $0.44 in postage. Plaintiffs are granted parking fees of $4.00 and $0.44 in postage. Accordingly, Plaintiffs are entitled to $503.33 in costs. III. CONCLUSION For the above reasons, Plaintiffs’ Motion for Attorneys Fees and Costs will be granted-in-part and denied-in-part. Plaintiffs will be awarded $9,649.58. . See U.S. Attorney’s Office — District of Columbia, Laffey Matrix — 2003-2012, http:// www.justice.gov/usao/dc/divisions/civil_ Laffey_Matrix_2003-2012.pdf. . On April 19, 2011, Judge Huvelle held a status conference that the parties attended in person. (Minute Entry, April 19, 2011.) On that date, Plaintiffs seek 1.80 hours under “[tjravel to court hearing” at the rate" }, { "docid": "21184955", "title": "", "text": "proposed discount, and the resulting fees-on-fees rate, are consistent with rates previously deemed reasonable in this District. In sum, the plaintiff has demonstrated that her proposed fees-on-fees rate has been adjudged reasonable both by Judges on this Court, and — at least by implication — by the District itself in recent IDEA litigation. By comparison, the District offers no evidence to suggest that the plaintiffs proposed discounted rate is unreasonable, or that its alternate suggestion is itself reasonable, in light of the nature of the present dispute or this Court’s case law. Accordingly, the Court concludes that plaintiffs proposed rate of $230 per hour represents reasonable compensation for her attorney’s, effort to litigate her successful fee application. IV, CONCLUSION For the foregoing reasons,.the plaintiffs Motion for Fees and Costs, ECF No. 21, is granted. The plaintiff is entitled to reimbursement for 42.30 hours of attorney time at a rate of $230 per hour, and $187.50 per hour for one hour of attorney time. The plaintiff is further entitled to reimbursement for $475 in costs incurred in filing and serving her Complaint. The plaintiff is thus entitled to reimbursement of a total of $10,391.50 in additional attorneys’ fees and costs. An appropriate Order accompanies this Memorandum Opinion. . Established in Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354, 371 (D.D.C.1983), aff'd in part, rev'd in part on other grounds, 746 F.2d 4 (D.C.Cir.1984), the Laffey Matrix recommends a presumptive maximum hourly rate for \"complex federal litigation,” id. at 372. In the years since it was initially proposed, the Laffey Matrix has spawned .two versions: (1) a version maintained by the U.S. Attorney’s Office for the District of Columbia, which is linked to inflation, as measured by the Consumer Price Index for all items in the Washington, DC area; and (2) an \"enhanced” version (also referred to as the \"Adjusted Laffey Matrix,” see e.g., Baker v. D.C. Pub. Sch., 823 F.Supp.2d 1, 9 (D.D.C.2011)), which is adjusted for inflation using the more rapidly rising Legal Services Index (\"LSI”) of the nationwide Consumer Price Index. See Bley, 793 F.3d at 101-02. 'The plaintiff's" }, { "docid": "20715213", "title": "", "text": "thereafter. Plaintiffs counsel billed for 2.5 hour's of travel time by charging 50% of her hourly rate (Motion, Exh. 4). See Bucher v. D.C., 777 F.Supp.2d 69, 77 (D.D.C.2011)) (explaining that in this Circuit, travel time is compensated at-half of the attorney’s rate). Counsel’s hourly rate for travel should be reduced to $168.75 per hour, which is consistent with the aforementioned hourly rate reduction to 75% of Laffey rates. G. Costs Plaintiff DeLa Cruz requests reimbursement of costs in the amount of $18.00 for parking and $181.65 for copying 1,211 pages at fifteen cents per page. (Motion, Exh. 4.) Defendant does not contest Plaintiffs copying costs but contends that costs not permitted by 28 U.S.C. § 1920 [regarding taxation of costs by a court] should be denied. (Cross-Motion at 19-20.) The Court finds that charge for parking should be reimbursed at cost, and copying charges reimbursed at fifteen cents per page, with total costs being awarded in the amount of $199.65. IV. CALCULATION OF FEES For the reasons stated above, Plaintiffs Motion for Summary Judgment [15] is granted in part and denied in part and Defendant’s Cross-Motion for Summary Judgment [16] is granted in part and denied in part. In this case, Plaintiffs counsel Ms. Houck documented 138.3 hours at $450.00/hour. (Motion Exh. 4.) Taking into account the adjustment of counsel’s hourly rates from $445.00/hour to $450.00/ hour, to correspond to the Laffey Matrix rate change on June 1, 2013, the reduction in hourly rates corresponding to this Court’s application of 75% of Laffey Matrix rates, the other reductions imposed by this Court, and the reimbursement of travel time at half of the [adjusted] hourly rate, Plaintiff DeLa Cruz should be awarded fees as follows: • 9.5 hours at $333.75/hour equals $3,170.63 • 128.8 hours at $337.50/hour equals $43,470.00 • The total of $46,640.63 is reduced by 25% (10% for non-prevailing party issues and 15% for • administrative-type tasks), which equals $34,980.47, plus • 2.5 hours [for travel] at $168.75/ hour Plaintiff DeLa Cruz is entitled to attorney’s fees totaling $35,402.35. . In this Memorandum Opinion, \"the District” encompasses District" }, { "docid": "21184931", "title": "", "text": "with fifteen years of experience, under the USAO Laffey Matrix; and (2) $475.00 in filing and service costs. Mem. Supp. Pl.’s Mot. Fees & Costs (Pl.’s Mem.) at 4-5, EOF No. 21-1. In opposing this motion, the District does not contest that the plaintiff prevailed both in seeking accommodations for her child under the IDEA and in her subsequent effort before this Court to recover attorneys’ fees stemming from her successful administrative case. Nor does the District contest the number of hours spent by plaintiffs counsel in successfully litigating the fee petition in federal court. Instead, the District argues that the plaintiff has failed to put forward sufficient additional evidence to demonstrate that her counsel’s fees associated with the successful fee application were reasonable and urges the Court to deny reimbursement of all or some of these outstanding fees. Thus, more than a year after the District’s defense of the plaintiffs administrative complaint was rejected, and months after the District again failed in its subsequent effort before this Court to challenge a negligible portion of the fees incurred during the administrative proceeding, the District now contends that the plaintiff bears anew the full burden of demonstrating the reasonableness of the hourly rate requested for reimbursement of-the fees incurred in this federal litigation., Specifically, the District contends that the plaintiffs request for outstanding attorneys’ fees is unreasonable for two primary reasons. First, the District argues that fees incurred in preparing the instant motion for reimbursement of the costs of litigating in federal court are “not reasonably related to the administrative action” and are therefore not compensable under the IDEA fee-shifting provision. Def.’s Opp’n at 1. Second, the District argues that the hourly rate proposed by the plaintiff at half the USAO Laffey Matrix rate for this fees-on-fees request, is unreasonable. Id. at 2-5. Each of these objections is addressed seriatim below. A. The Plaintiff is Entitled to Reasonable Fees Incurred in Her Successful Litigation Before This Court The District concedes that the plaintiff may recover reasonable fees-on-fees stemming from her IDEA claim, id. at 2, and does not contest the number" }, { "docid": "20385039", "title": "", "text": "show the reasonableness of any rate. 20 U.S.C. § 1415(i)(3)(C); Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C.Cir. 1995). Plaintiffs request hourly rates according to the Laffey Matrix, which was created to follow rates charged by litigators who practice complex federal litigation in the District of Columbia and are presumptive maximum rates for such litigation. Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354, 374 (D.D.C.1983) aff'd in part, rev’d in part on other grounds, 746 F.2d 4 (D.C.Cir.1984) (“the relevant legal market in this action is complex employment discrimination litigation”). Where the federal litigation is not particularly complex, the plaintiff is not entitled to the full Laffey rates. See Rooths v. District of Columbia, 802 F.Supp.2d 56, 62-63 (D.D.C.2011). In determining the rate for “fees-on-fees,” the undersigned has previously held that “fee litigation is not complex federal litigation and does not necessarily entail specialized expertise and experience.” Smith v. District of Columbia, No. 02-cv-373, 2005 WL 914773 at *3 (D.D.C. Apr. 18, 2005) (awarding Plaintiffs counsel an hourly rate of $250 for fees-on-fees litigation). In contrast, the undersigned’s January 11, 2012 Order noted that administrative proceedings under IDEA do require specialized expertise and experience. (See Pis.’ Mot. for Attorney Fees, Ex. 1.) Following these two prior decisions, the hourly rate for fee litigation should be less than the rate for work in the underlying administrative proceeding. Furthermore, Plaintiffs have not demonstrated the complexity of the fee litigation. Accordingly, the undersigned holds that Plaintiffs are entitled to half of the applicable rate under the Laffey Matrix, or $237.50 per hour for work prior to June 1, 2011 and $247.50 for work on or after June 1, 2011. Williams, Jester’s paralegal, is entitled to an hourly rate of $140.00 per hour under the Laffey Matrix. Williams prepared the attorney fee invoice for the Motion for Attorney Fees. In the January 11, 2012 Order, the undersigned awarded Williams three-quarters of the Laffey rate. Because Williams’ work in this case is the same type of work done previously, the Court will award Williams three-quarter of the Laffey rate here, or $105.00 per" }, { "docid": "10094624", "title": "", "text": "courts’ ”). 4. The Plaintiffs Should Be Awarded Total Fees and Costs of $159,133.74 The total fees and costs were calculated by first adopting the Laffey rates. These rates were then further reduced by one-quarter because the plaintiffs failed to establish the u complexity of the involved IDEA litigation. After calculating this rate, fees were reduced by one-half for work performed on both N.M.’s case and S.S.’s case to account for limited success. Faxing costs were reduced from $1.00 per page to $0.15 per page. Mr. Ostem and Mr. Nahass were billed at the rate equal to three-quarters of the Laffey rates for paralegals/law clerks for work performed while unlicensed in the District. Costs incurred by work completed by Sharon Millis, an educational advocate, were not awarded. In light of the conclusions reached in today’s memorandum opinion, this Court will award $159,133.74 in attorneys’ fees. IV. CONCLUSION For the foregoing reasons, the Plaintiffs’ Motion for Summary Judgment shall be granted in part and denied in part, and Defendant’s Cross-Motion for Summary Judgment shall be granted in part and denied in part. . The Laffey Matrix is a matrix of hourly rates for attorneys of varying experience levels and paralegals/law clerks. The matrix is prepared by the Civil Division of the United States Attorney’s Office for the District of Columbia for use when a \"fee-shifting” statute permits the recovery of reasonable attorney’s fees. . The Court finds Plaintiffs claims analysis to be fairly logical and noted that the Defendant never responded to the argument, nor sought leave to file a sur-reply to address the new argument raised for the first time in Plaintiff's sur-reply. See Pl's Sur-reply in support of Pl’s Mot. Summ. J., 2, Aug. 5, 2013, ECF No. 29. . The Court notes that Ms. Millis only billed for the time of her testimony versus the time for the full hearing billed by the attorney. See Pl.’s Mot. Summ. J. Ex. 2 (corrected), at 57, ECF No. 28. . If a plaintiffs attorney is not compensated for the tasks performed by a paralegal, the attorney may choose to perform" }, { "docid": "21184947", "title": "", "text": "Veterans, 675 F.2d 1319, 1325 (D.C.Cir.1982) (“An applicant is required to provide specific evidence of the prevailing community rate for the type of work for which he seeks an award.”). Here, the-parties have previously agreed that the reasonable hourly rate applicable to the present litigation is $345, or three-quarters of the USAO Laffey Matrix rate available to an attorney with the plaintiffs level of experience and expertise. Pl.’s Mem. at 4; Jones, 2015 WL 5093559, at *6. In pursuing her present application for fees-on-fees, however, the plaintiff proposes to an hourly rate of only $230, representing a 50%, rather-than a 25%, reduction from the USAO Laffey Matrix rate applicable to plaintiffs counsel. Pl.’s Mem. at 4. In support of this proffered rate, the plaintiff suggests that she has requested a lower rate in pursuing the present motion “in light of previous decisions by this Honorable Court ,.. and in the interest of summary adjudication [of the present motion].” Id. at 4-5. In particular, the plaintiff cites three prior decisions by judges in this District to contend that her proposed rate is reasonable. See Pl.’s Reply Def.’s Opp’n Award Attorney’s Fees & Costs (“Pl.’s Reply”) at 5, ECF No. 23 (citing Means, 999 F.Supp.2d at 136, Garvin v. District of Columbia, 910 F.Supp.2d 135, 138 (D.D.C.2012), and Smith v. District of Columbia, No. 02-cv-0373, 2005 WL 914773, at *3 (D.D.C. Apr. 18, 2005)). In response, the District observes that the plaintiffs suggested rate of $230 per hour is 75% of her counsel’s “ordinary rate,” Def.’s Opp’n at 1 (citing Pl.’s Mot. Summ. J. at 7-8), and argues the authorities cited by the plaintiff do not support the plaintiffs proposed rate but only one at 50% of that ordinary rate.. See id. at 4. Contending that the plaintiff has therefore failed to carry her burden of demonstrating that her proposed fees-on-fees are reasonable, the District argues first that the plaintiff is- entitled to no additional recovery. Id. Alternatively, instead of 50% of the USAO Laffey Matrix rate, the District suggests .that the Court award no more than 50% of plaintiffs counsel’s “ordinary" }, { "docid": "2428350", "title": "", "text": "reasoned that because “§ 1988 ... makes [no] mention of attorney liability for costs and fees ... [and w]ithout any evidence that Congress wished to alter the uniform structure established by the 1853 Act, we are reluctant to disrupt it.” Roadway Express, Inc. 447 U.S. at 761,100 S.Ct. 2455 (rejecting sanction awarded under § 1988 and remanding case to district court for assessment of fees and costs that might be recoverable under Rule 37). Like the Roadway Express, Inc. Court, this Court finds that the propriety for awarding sanctions for discovery violations is not controlled by § 1988, but rather Federal Rule of Civil Procedure 37(a)(4)(A). B. Are the Attorney’s Fees Requested by the Plaintiff Reasonable? In the District of Columbia, reasonable hourly rates are determined by the schedule or attorney’s fee rates structure approved by the Court in Laffey 7. Laffey I, 572 F.Supp. at 361; Civil Division of the United States Attorney’s Office for the District of Columbia, Laffey Matrix 2003-2005, at http://www.usdoj.gov/usao/dc/ Divisions/CiviLDivision/ Laffey_Matrix_4.html (“Laffey Matrix 2003-2005”). Here, the plaintiffs request fees for two attorneys at the following hourly rates: James Klimaski, an attorney with over 25 years experience, billed his time at the rate of $360 per hour, Bill of Costs at 2, and Jamie Davis, an attorney with a little more than a year of experience, billed her time at the rate of $170 per hour. Id. Each of these rates is at the permitted reasonable rates provided in the Laffey Matrix. Laffey Matrix 2003-2005. However, the defendants ask the Court to “make a downward adjustment to [the] plaintiffs bill of costs by modifying the hourly rate and not using the rates [as] set [forth] in the Laffey matrix.” Def.’s Reply at 3. Without a valid rationale advanced by the defendants justifying why this Court should depart from the standard of reasonableness developed in Laffey, the Court finds that the hourly rates proposed by the plaintiff are reasonable. C. Are the Number of Hours Expended on the Discovery Dispute Reasonable? In addition to their request to modify the plaintiffs hourly rate, the defendants also request" }, { "docid": "20385037", "title": "", "text": "are not reasonable and do not need to be reimbursed. First, on May 24, 2012, Tasha Hardy (“Hardy”) entered her appearance in the case for the District. Plaintiffs seek 0.20 hours for “[r]eview Entry of Apperance [sic] from T. Hardy, Esq., AAG.” Plaintiffs’ time entry from May 20, 2012 indicates that Jester spoke to Hardy on the phone on that date, so Jester already had knowledge that Hardy was the new lawyer for the District and did not need to review Hardy’s Entry of Appearance. The time entry on May 24, 2012 is not reimbursable. Second, Plaintiffs’ final five time entries relate to the request for fees-on-fees. On March 4, 2012, April 4, 2012 and April 25, 2012, Plaintiffs’ entries involve correspondence from Jester to Hardy about the possibility of settling the claim for fees-on-fees. (See Pis.’ Reply, Exs. 1-3.) On May 25 and 26, Plaintiffs’ entries involve drafting and finalizing the pending Motion for Attorneys Fees and Costs. Receiving fees for the drafting of the pending Motion amounts to “fees-on-fees-on-fees.” Plaintiffs are entitled to fees incurred during the adjudication of the due process complaint and for fees incurred in obtaining the reimbursement of those fees. However, receiving “fees on fees on fees” is too attenuated from the adjudication of the due process complaint to be reimbursable. Plaintiffs’ time entries are reduced by 3.9 hours. Noting the preceding deductions, Plaintiffs are entitled to 38.6 hours for Jester and 0.7 hours for Williams. C. Hourly Rate In the January 11, 2012 Order, the Court found that Plaintiffs were entitled to an hourly rate of three-quarters of the Laffey Matrix for work related to the administrative due process complaint. (Order, Jan. 11, 2012 at 7.) For a lawyer with over 20 years of experience, like Jester, the awarded hourly rates were $348.75 and $356.25 per hour. (Id. at 8.) This rate reflected Jester’s knowledge of IDEA law and administrative proceedings and the level of complexity of the underlying lawsuit. (Id. at 6.) A “reasonable” hourly rate shall be based on rates prevailing in the community and the burden is on Plaintiffs to" }, { "docid": "13534178", "title": "", "text": "based upon the rates prevailing in the community. § 1415 (i) (3) (C). Furthermore, awards are inappropriate for time spent preparing for IEP meetings. § 1415(i)(3)(D) A. Hourly Rates IDEA limits the hourly rate of attorney’s fees to the prevailing community rate. § 1415(i)(3)(C). This Court relies upon the fee schedule (“Laffey Matrix”) adopted in Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 12-13 (D.C.Cir.1984), and updated by the United States Attorney’s Office for the District of Columbia, to determine the prevailing community rate. See Covington v. District of Columbia, 57 F.3d 1101, 1109 (D.C.Cir.1995) (upholding this Court’s reliance on the Laffey Matrix as a measurement of a rate’s reasonableness);. Plaintiff contends that the hourly rate for attorneys Iseman and Moynihan exceeded the prevailing community rate. Defendants have billed these attorneys, who each have five years of experience, at $250 per hour. In accordance with the Laffey Matrix, this Court reduces the awarded hourly rates for attorneys Iseman and Moynihan to $225. B. IEP Meetings The plaintiff correctly claims that the defendants may not collect fees and costs for work relating to IEP meetings. § 1415(i)(3)(D)(ii) states that “attorneys’ fees may not be awarded relating to any meeting of the IEP Team unless such meeting is convened as a result of an administrative proceeding or judicial action.” Plaintiff identifies $4,795 for time dedicated to IEP Meetings. The defendants do not dispute the amount. Therefore, defendants’ proposed award is reduced by $4,795.00. C. Motions and Claims that Defendants did not Prevail Upon. Plaintiff also alleges that the defendants are not entitled to fees for the unsuccessful motions to dismiss and counter-claim. Despite the defendants’ claim to the contrary, a prevailing party is not entitled all time spent litigating a successful claim. Attorney fees should be reduced for motions and claims that were unrelated to the successful resolution of the action. Copeland v. Marshall, 641 F.2d 880, 892-93 (D.C.Cir.1980). Here, the Court denied the defendants’ motions to dismiss noting that the motion was untimely as the 120 day period for process of service had not expired. Additionally, this Court dismissed the defendants’" }, { "docid": "161788", "title": "", "text": "issues involved in this litigation, and thus will reduce the hourly rates to one half of the maximum set by the Laffey Matrix. Therefore, the plaintiffs are entitled to receive an hourly rate of $237.50 per hour for work done by Ms. Jester prior to June 1, 2011, and $247.50 per hour for any work done thereafter. Likewise, the hourly rate requested for work performed by Ms. Jester’s paralegal, Mery Williams, will be reduced to $70.00 for work done after June 1, 2011, III. CONCLUSION Based on the foregoing reasons, the plaintiffs’ motion for attorneys’ fees is granted in part and denied in part. SO ORDERED this 19th day of December, 2012. ■ . In addition to the filings already referenced, the Court considered the following submissions in rendering its decision: (1) Points and Authorities in Support of Plaintiffs' Motion for an Award of Attorney's Fees and Costs (\"Pis.' Mem.”); (2) Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for an Award of Attorney’s Fees and Costs (“Def.'s Mem.”); and (3) Plaintiff’s [sic] Reply to Defendant's Opposition to Plaintiff’s [sic] Motion for Attorney's Fees (“Pis.’ Reply”)- . The defendant does not address the amount of time Ms. Jester spent in litigating this action or the inclusion of costs in the award the plaintiffs seek. The Court, therefore, treats the plaintiffs’ arguments regarding these points as conceded. See Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003) (Walton, J.), aff'd, 98 Fed.Appx. 8 (D.C.Cir.2004); cf. Local Civ. R. 7(b) (stating that a court may treat a motion as coriceded when an opposition memorandum is not timely filed). .The Court’s holding should not be read as an endorsement of the view urged by the defendant that the Laffey Matrix does , not reflect the prevailing market rates for special education attorneys as a general proposition, nor does the Court consider this decision to be in conflict with its prior decision in this case or the decisions of the other members of this Court finding that Laffey rates are applicable in IDEA litigation. The Court' finds" }, { "docid": "2428351", "title": "", "text": "for two attorneys at the following hourly rates: James Klimaski, an attorney with over 25 years experience, billed his time at the rate of $360 per hour, Bill of Costs at 2, and Jamie Davis, an attorney with a little more than a year of experience, billed her time at the rate of $170 per hour. Id. Each of these rates is at the permitted reasonable rates provided in the Laffey Matrix. Laffey Matrix 2003-2005. However, the defendants ask the Court to “make a downward adjustment to [the] plaintiffs bill of costs by modifying the hourly rate and not using the rates [as] set [forth] in the Laffey matrix.” Def.’s Reply at 3. Without a valid rationale advanced by the defendants justifying why this Court should depart from the standard of reasonableness developed in Laffey, the Court finds that the hourly rates proposed by the plaintiff are reasonable. C. Are the Number of Hours Expended on the Discovery Dispute Reasonable? In addition to their request to modify the plaintiffs hourly rate, the defendants also request that this Court reduce the number of hours sought by the plaintiff for four independent reasons. Def.’s Reply at 3. The Court will address each of these challenges separately below. “[0]nee the reasonableness of the hours claimed becomes an issue, the applicant should voluntarily make his time charges available for inspection by the District Court or opposing counsel on request.” Concerned Veterans, 675 F.2d at 1327. Here, the plaintiff has provided the Court with a Fee Statement, detailing the hours expended in preparing his motion to compel. Bill of Costs., Ex. 2. Nonetheless, [flees are not recoverable for nonproductive time nor ... for time expended on issues on which [a] plaintiff did not ultimately prevail. The fee application should therefore indicate whether nonproductive time or time expended on unsuccessful claims was excluded and, if time was excluded, the nature of the work and the number of hours involved should be stated. Concerned Veterans, 675 F.2d at 1327-1328. In the present case, the plaintiff used its “billing judgment” to adjust the total amount of fees billed" }, { "docid": "21184954", "title": "", "text": "is unreasonably high. Further, although the District is correct that the Court in Smith did not clearly consider proposed Laffey rates, this superficial distinction is of little consequence. In Smith, the Court concluded that that the plaintiffs initial “fee litigation [was] not complex federal litigation and [did] not necessarily entail specialized expertise and experience,” and therefore “adjusted downward” the applicable fees-on-fees hourly rate for the plaintiffs lead attorneys by roughly 22% and 17%, respectively, without explanation for how the Court arrived at these discounted rates. Smith, 2005 WL 914773, at *3 (reducing the applicable hourly rates from $320 to $250, and from $300 to $250). By comparison, here, the plaintiffs proposed fees-on-fees rate represents a discount of roughly 33% from the rate awarded without objection in her initial fees request. Pl.’s Mem. at 4 (suggesting a reduction from $345 per hour to $230 per hour). Indeed, the actual rate proposed by the plaintiff is less than that approved by the Court in Smith. Thus, contrary to the District’s contention, Smith suggests that both the plaintiffs proposed discount, and the resulting fees-on-fees rate, are consistent with rates previously deemed reasonable in this District. In sum, the plaintiff has demonstrated that her proposed fees-on-fees rate has been adjudged reasonable both by Judges on this Court, and — at least by implication — by the District itself in recent IDEA litigation. By comparison, the District offers no evidence to suggest that the plaintiffs proposed discounted rate is unreasonable, or that its alternate suggestion is itself reasonable, in light of the nature of the present dispute or this Court’s case law. Accordingly, the Court concludes that plaintiffs proposed rate of $230 per hour represents reasonable compensation for her attorney’s, effort to litigate her successful fee application. IV, CONCLUSION For the foregoing reasons,.the plaintiffs Motion for Fees and Costs, ECF No. 21, is granted. The plaintiff is entitled to reimbursement for 42.30 hours of attorney time at a rate of $230 per hour, and $187.50 per hour for one hour of attorney time. The plaintiff is further entitled to reimbursement for $475 in costs incurred" }, { "docid": "20385038", "title": "", "text": "fees incurred during the adjudication of the due process complaint and for fees incurred in obtaining the reimbursement of those fees. However, receiving “fees on fees on fees” is too attenuated from the adjudication of the due process complaint to be reimbursable. Plaintiffs’ time entries are reduced by 3.9 hours. Noting the preceding deductions, Plaintiffs are entitled to 38.6 hours for Jester and 0.7 hours for Williams. C. Hourly Rate In the January 11, 2012 Order, the Court found that Plaintiffs were entitled to an hourly rate of three-quarters of the Laffey Matrix for work related to the administrative due process complaint. (Order, Jan. 11, 2012 at 7.) For a lawyer with over 20 years of experience, like Jester, the awarded hourly rates were $348.75 and $356.25 per hour. (Id. at 8.) This rate reflected Jester’s knowledge of IDEA law and administrative proceedings and the level of complexity of the underlying lawsuit. (Id. at 6.) A “reasonable” hourly rate shall be based on rates prevailing in the community and the burden is on Plaintiffs to show the reasonableness of any rate. 20 U.S.C. § 1415(i)(3)(C); Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C.Cir. 1995). Plaintiffs request hourly rates according to the Laffey Matrix, which was created to follow rates charged by litigators who practice complex federal litigation in the District of Columbia and are presumptive maximum rates for such litigation. Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354, 374 (D.D.C.1983) aff'd in part, rev’d in part on other grounds, 746 F.2d 4 (D.C.Cir.1984) (“the relevant legal market in this action is complex employment discrimination litigation”). Where the federal litigation is not particularly complex, the plaintiff is not entitled to the full Laffey rates. See Rooths v. District of Columbia, 802 F.Supp.2d 56, 62-63 (D.D.C.2011). In determining the rate for “fees-on-fees,” the undersigned has previously held that “fee litigation is not complex federal litigation and does not necessarily entail specialized expertise and experience.” Smith v. District of Columbia, No. 02-cv-373, 2005 WL 914773 at *3 (D.D.C. Apr. 18, 2005) (awarding Plaintiffs counsel an hourly rate of $250 for fees-on-fees" }, { "docid": "13534177", "title": "", "text": "defendants’ Counterclaim and denied the plaintiffs Motion for Summary Judgment, resulting in the affir-mance of the administrative determination. Pursuant to this Court’s Order of March 31, 2005, defendants now seek attorney’s fees and costs totaling $31,813.98. Plaintiff concedes that the defendants are the prevailing party in this matter and are entitled to reasonable attorney’s fees and costs; however, plaintiff alleges that the fees are unreasonable and should be reduced. Specifically, the plaintiff claims that the defendants are not entitled to fees and costs attributed to: the unsuccessful motions to dismiss and counterclaim, fees relating to certain IEP meetings, excessive hourly rates, as well as, excessive billing. Finally, the plaintiff alleges that the fee cap rider in Section 327 of the District of Columbia Appropriations Act, 2005, Pub.L. No. 108-335, caps the defendant’s liability for attorney’s fees at $4,000. DISCUSSION Under IDEA, this Court, “in its discretion, may award reasonable attorney’s fees and costs... to a prevailing party who is the parent of a child with a disability.” 20 U.S.C. § 1415(i)(3)(B). The fee award is based upon the rates prevailing in the community. § 1415 (i) (3) (C). Furthermore, awards are inappropriate for time spent preparing for IEP meetings. § 1415(i)(3)(D) A. Hourly Rates IDEA limits the hourly rate of attorney’s fees to the prevailing community rate. § 1415(i)(3)(C). This Court relies upon the fee schedule (“Laffey Matrix”) adopted in Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 12-13 (D.C.Cir.1984), and updated by the United States Attorney’s Office for the District of Columbia, to determine the prevailing community rate. See Covington v. District of Columbia, 57 F.3d 1101, 1109 (D.C.Cir.1995) (upholding this Court’s reliance on the Laffey Matrix as a measurement of a rate’s reasonableness);. Plaintiff contends that the hourly rate for attorneys Iseman and Moynihan exceeded the prevailing community rate. Defendants have billed these attorneys, who each have five years of experience, at $250 per hour. In accordance with the Laffey Matrix, this Court reduces the awarded hourly rates for attorneys Iseman and Moynihan to $225. B. IEP Meetings The plaintiff correctly claims that the defendants may not collect" }, { "docid": "20715212", "title": "", "text": "James Robinson (Special Education Coordinator and LEA representative at Eastern Senior High School [School B]). (CrossMotion, Exh. 4 at 3.) The HOD in this case does not support Plaintiffs sweeping statements that this litigation was complicated. Nor do the billing records indicate that counsel had to address any legal issues that were out of the ordinary or particularly time-consuming when preparing for the Due Process Hearing. The Court does not dispute that Ms. Houck’s knowledge of IDEA law, experience, and her understanding of the procedural aspects of administrative hearings helped her to obtain a favorable decision for her clients. Like Brighthaupt and Booths, supra., however, no evidence exists that the DeLa Cruz hearing presented a novel legal issue or was significantly more complex than most IDEA hearings. The Court finds that this is a straightforward non-complex case seeking IDEA legal fees where the hourly billing rates should be calculated as three-quarters of the Laffey rates. Ms. Houck’s rate is thus reduced to $333.75 per hour for hours through May 31, 2013, and $337.50 per hour thereafter. Plaintiffs counsel billed for 2.5 hour's of travel time by charging 50% of her hourly rate (Motion, Exh. 4). See Bucher v. D.C., 777 F.Supp.2d 69, 77 (D.D.C.2011)) (explaining that in this Circuit, travel time is compensated at-half of the attorney’s rate). Counsel’s hourly rate for travel should be reduced to $168.75 per hour, which is consistent with the aforementioned hourly rate reduction to 75% of Laffey rates. G. Costs Plaintiff DeLa Cruz requests reimbursement of costs in the amount of $18.00 for parking and $181.65 for copying 1,211 pages at fifteen cents per page. (Motion, Exh. 4.) Defendant does not contest Plaintiffs copying costs but contends that costs not permitted by 28 U.S.C. § 1920 [regarding taxation of costs by a court] should be denied. (Cross-Motion at 19-20.) The Court finds that charge for parking should be reimbursed at cost, and copying charges reimbursed at fifteen cents per page, with total costs being awarded in the amount of $199.65. IV. CALCULATION OF FEES For the reasons stated above, Plaintiffs Motion for Summary Judgment" }, { "docid": "21184944", "title": "", "text": "553, 130 S.Ct. 1662 (citing Blum, 465 U.S. at 899, 901, 104 S.Ct. 1541). “This requirement is essential if the lodestar method is to realize one of its chief virtues, ie., providing a calculation that is objective and capable of being reviewed on appeal.” Id. Absent a clear explanation for such a deviation, “adequate appellate review is not feasible, and without such review, widely disparate awards may be made, and awards may be influenced (or at least may appear to be influenced) by a judge’s subjective opinion regarding particular attorneys or the importance of the case.” Id. at 558, 130 S.Ct. 1662. Here, the Court has identified—over no objection from the District—a reasonable hourly rate associated with the plaintiffs counsel’s efforts to obtain her child’s statutorily guaranteed educational accommodations. See Jones, 2015 WL 5093559, at *6. Having done so, to the extent that the District now contends that the plaintiffs follow-on fee application presented less complexity than her initial administrative action, the Court must therefore presume that this relative simplicity is “fully reflected in the number of billable hours recorded [the plaintiffs] counsel.” Perdue, 559 U.S. at 553, 130 S.Ct. 1662. In other words, any consideration, of the relative complexity of the present fees litigation as compared to the plaintiffs underlying administrative action is already incorporated into the reasonableness of the number of hours spent in litigating her request for fees before this Court. 2. The Plaintiff’s Voluntary Discount of the Hourly Rate Approved by this Court for his Fees-on-Fees Request is Reasonable The plaintiff has not requested reimbursement ' for fees-on-fees at three-quarters of the USAO Laffey Matrix rate applied to his'counsel’s successful efforts in his underlying administrative action. Instead, in. an effort to expedite payment and reduce litigation costs, the plaintiff requests reimbursement for fees-on-fees at only half of the applicable USAO Laffey Matrix rate. As explained above, because the plaintiffs successful fee application was “part of the same ‘action’ as the underlying educational dispute [for which reasonable fees have already been awarded],” Kaseman, 444 F.3d at 641-42, the fee rate already approved by the Court without objection" } ]

[ { "docid": "22543368", "title": "", "text": "the finding of the jury we must assume — that the insured was, at the date of his application, or had been prior thereto, afflicted with the disease of scrofula, asthma, or consumption, the question arises whéther the beneficiary may not recover, unless it appears that he had knowledge or some reason to believe when he applied for insurance, that he was or had been afflicted with either of those diseases. The Circuit Court plainly proceeded upon the ground that his knowledge or belief as to having been afflicted with the diseases specified, or some ■ one of them, was not an essential element in tlie contract; in other words, if the assured ever had, in fact, any one of the diseases mentioned in his answer to the seventh question, there could be no recovery, although the jury should find from the evidence that he acted in perfect good faith, and had no reason to suspect, much less to believe or know, that he had ever been so afflicted. If, upon a reasonable interpretation, such was the contract, the duty of the court is to enforce it according to its terms; for the law does not forbid parties to a contract for life insurance to stipulate that its validity shall depend upon conditions or contingencies such as the court below decided were embodied in the policy in suit. The contracts involved in Jeffries v. Life Ins. Co., 22 Wall. 47, and Aetna Life Ins. Co. v. France, &c., 91 U. S. 510, were held to be of that kind. But, unless.clearly demanded by the established rules governing the construction of written agreements, such an interpretation ought to be avoided. In the absence of explicit, unequivocal stipulations, requiring such an interpretation, it should not be inferred that a person took a life policy with the distinct understanding that it should be void and all premiums paid thereon forfeited, if at any time in the past, however remote, he was, whether conscious of the fact or not, afflicted with some one of the diseases mentioned in the question to which he was" } ]

[ { "docid": "15369904", "title": "", "text": "invalidate a policy if procured by such misleading and fraudulent conduct. In this ease, the answers to the questions were of a character that the applicant could not have been mistaken about. They related directly to the state of his health regarding serious illness, and whether he had been treated at all by any physi- eians during the period of five years previous to these inquiries, and he made positive and emphatic replies denying the existence of any sickness, or that he had received any medical treatment; all of which answers, being material and of vital importance to the transactions thus consummated, were entirely false, and deceived and misled the insurance companies into making the contracts of insurance now sought to be annulled. Authorities to sustain these views might be cited almost without number, but only a few will be given. Mutual Life Ins. Co. v. Hilton-Green, 241 U&. S. 613, 622, 36 S. Ct. 676, 60 L. Ed. 1202; Hubbard v. Mutual Reserve Fund L. Ass’n, 100 F. 719, 726, 727, 40 C. C. A. 665; Talley v. Metrop. L. Ins. Co., 111 Va. 778, 69 S. E. 936; Mutual L. Ins. Co. v. Mullan, 107 Md. 457, 69 A. 385; Bryant v. Metropolitan L. Ins. Co., 147 N. C. 181, 60 S. E. 983; Schas v. Equitable L. Assur. Soc., 166 N. C. 55, 81 S. E. 1014; Caruthers v. Kansas Mut. L. Ins. Co. (C. C.) 108 F. 487, 491; Rigby v. Metropolitan L. Ins. Co., 240 Pa. 332, 87 A. 428; 4 Joyce on Insurance (2d Ed.) p. 3528; 25 Cyc. 816. We have given much consideration to appellant’s position that the answers, made by the assured to the several questions relied on to annul the policies, were written by representatives of the company, and not the assured, and that the latter should not be bound thereby; that the companies had knowledge as to the health of the assured, information in that respect given to their agents being imputed to them. We have examined carefully the Virginia statutes, Code, § 4220, relied on in support of" }, { "docid": "834692", "title": "", "text": "defenses based, upon misrepresentations concerning matters whieh do not contribute to the death of the assured, whether such statements be warranties or representations. This statute leaves material representations as they were at common law. In Missouri a material representation to avoid a policy must be false, known to be such by the assured, or, if it consists of a mistake, that the mistake must be of such a character that the insurer must have regarded it as within the personal knowledge of the insured. State ex rel. Life Ins. Co. v. Allen, 310 Mo. 378, 276 S. W. 877; Simpson v. Metropolitan L. Ins. Co. (Mo. App.) 282 S. W. 454; Abernathy v. Springfield Mut. Assn. (Mo. App.) 284 S. W. 198. Ordinarily false representations will not avoid a policy unless the assured knew they were false, or he were chargeable with such knowledge. This seems to be the rule applied in the National courts. Moulor v. Am. L. Ins. Co, 111 U. S. 335, 4 S. Ct. 466, 28 L. Ed. 447; Northwestern Mut. L. Ins. Co. v. Wiggins (C. C. A.) 15 F.(2d) 646, 647; Campbell v. Business Men’s Assur. Co. (D. C.) 31 F.(2d) 571. The learned Circuit Court of Appeals of the Ninth Circuit in Northwestern Mut. L. Ins. Co. v. Wiggins, supra, says: “The insured made categorical answer to all questions. It must be assumed that such answers, if true, gave all information required to determine acceptance of the risk, and to avoid the risk or cancel the policy it must be shown that the answers were false and known to be false by the insured.” The statute invoked eliminates all defenses based upon representations concerning matters whieh did not contribute to the assured’s death. It prescribes no rule with reference to the effect tó be given to representations not within the ban of the statute. The effect of such representation is therefore a matter of general law. . Being a matter of general law and not dependent upon the local statute, this court will follow its own rule or the rule laid down by" }, { "docid": "14681626", "title": "", "text": "He thought it was.” This, to a physician, might indicate a serious condition, but apparently even from a medical standpoint the symptom was not neeessarily serious. The insured, however, was a layman. The symptoms disclosed disappeared, and inasmuch as his physician did not seem to consider the symptoms serious, and did not advise the insured that it was serious, but permitted him to continue in a strenuous occupation, whereas, had the doe- , ,, . , . / . ,,, ,. tor thought him afflicted with Bright’s djs- . ° .., ., , , , , ease, he should have prescribed complete rest, ’ ,. . y, . /, . ,. ’ reasonable men might have concluded that ,, ...... neither the insured nor his physician knew . ,. , ... .. , that the symptoms disclosed a diseased con- .... * ■ ^ . dltlon °£ E a T7 S more a trmal disturbance, Misrepresentations will not void a policy unless the insured knew they were false, or he were chargeable with such knowledge. Seeurity Life Insurance v. Brimmer (C. C. A.) 36 F.(2d) 176, 179; Bankers’ Reserve Life Co. v. Matthews (C. C. A.) 39 F.(2d) 528, 537; Moulor v. American Life Ins. Co., 111 U. S. 335, 4 S. Ct. 466, 28 L. Ed. 447; Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613; Northwestern Mutual Life v. Wiggins (C. C. A.) 15 F.(2d) 646; New York Life Ins. Co. v. Griffith (C. C. A.) 35 F.(2d) 945; Adler v. New York Life Ins. Co. (C. C. A.) 33 F.(2d) 827; Metropolitan Life Ins. Co. v. Johnson, 105 Ark. 101, 150 S. W. 393. In Bankers’ Reserve Life Co. v. Matthews, supra, this court said with reference to misrepresentations alleged to have been falsely made: “Being representations, they do not void the contract, even though untrue in faet, provided they were honestly madé in the belief by insured that they were true. That is, they must be both untrue and knowingly falsely made by insured.” In Security Life Insurance v. Brimmer, supra, this court said: “Ordinarily" }, { "docid": "21347235", "title": "", "text": "the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable, and whether it so contributed in any case •shall be a question for the jury.” This section of the Missouri Statutes does not condition an action in equity brought during the life of the insured to annul a contract of insurance obtained by false representations made by the insured which would tend to make the risk assumed by the company less hazardous than the true facts would indicate. Schuermann v. Union Central Life Insurance Co., 165 Mo. 641, 65 S. W. 723; nor do state daws “ordinarily constitute a rule of decision binding on federal courts of equity,” Brill v. W. B. Foshay Co. (C. C. A. 8) 65 F.(2d) 420, 424. The representations, however, were clearly material to the risk. The .general rule -in this and other federal jurisdictions is that statements in applications for life insurance policies as to prior illness, and consultations with physicians are deemed material as matter of law. They are recognized as materially influencing the insurer’s judgment in accepting the risk or fixing the premium. Mutual Life Ins. Co. v. Hurni Packing Co. (C. C. A. 8) 260 F. 641; Fountain & Herrington v. Mutual Life Ins. Co. (C. C. A. 4) 55 F.(2d) 120; Penn Mutual Life Ins. Co. v. Mechanics’ Savings Bank & Trust Co. (C. C. A. 6) 72 F. 413, 38 L. R. A. 33; Raives v. Raives (C. C. A. 2) 54 F.(2d) 267; New York Life Ins. Co. v. McCarthy (C. C. A. 5) 22 F.(2d) 241, 244; Atlantic Life Ins. Co. v. Hoefer (C. C. A. 4) 66 F.(2d) 464; Aetna Life Ins. Co. v. Perron (C. C. A. 7) 69 F.(2d) 401; Jefferson Standard Life Ins. Co. v. Stevenson (C. C. A. 5) 70 F.(2d) 72. 3. If the representation is found to be material, the policy will be avoided whether the untrue answer was made in good faith or not. Penn Mutual Life Ins. Co. v. Mechanics’ Savings Bank & Trust Co., supra;" }, { "docid": "15369907", "title": "", "text": "information to its representative, are each predicated upon the transaction having been entered into in good faith, and that the same is otherwise free from the taint of fraud and imposition on the part of the assured; and when it once appears that such fraudulent conditions exist respecting material matters entering into the making of the contract, they become immaterial, and a contract so secured must fall. Mutual L. Ins. Co. v. Hilton-Green, 241 U. S. 613, 622, 36 S. Ct. 676, 60 L. Ed. 1202, supra; New York Life Ins. Co. v. Fletcher, 117 U. S. 519, 529, 533, 534, 6 S. Ct. 837, 29 L. Ed. 934; United States L. Ins. Co. v. Smith, 92 F. 503, 34 C. C. A. 506; Caruthers v. Kansas Mutual L. Ins. Co. (C. C.) 108 F. 487, 492, 494, supra; North American F. Ins. Co. v. Throop, 22 Mich. 146, 168, 7 Am. Rep. 638; Gallant v. Metropolitan Life Ins. Co., 167 Mass. 77, 44 N. E. 1073; Roe v. National Life Ins. Co., 137 Iowa, 696, 115 N. W. 500, 17 L. R. A. (N. S.) 1144; Sanders v. Cooper, 115 N. Y. 279, 22 N. E. 212, 5 L. R. A. 638, 12 Am. St. Rep. 801; Lorie v. Connecticut Mutual L. Ins. Co., 15 Fed. Cas. 891. We are forced to the conclusion that the assured, in making the answers he did, in respect to his health and medical treatment he had received, fraudulently made false representations in regard to material matters, and concealed and withheld the real faets, which, if known, would have resulted in the applications being refused and the contracts of insurance not entered into. Appellant insists in the seventh assignment of error that the court erred in allowing the witness Dr. Alfred Billings, assistant medical director for the Equitable Society, to testify as to whether the company would have issued the policy had the true faets in respect to the transaction been known. The ruling of the court complained of does not seem to us material, in the light of the conclusion we have" }, { "docid": "1847048", "title": "", "text": "It is urged that under the law of Colorado an Insured is not bound by false statements inserted in an application by the medical examiner of the company without fraud or negligence on the part of the insured. The cases of Pacific Mut. Life Ins. Co. v. Van Fleet, 47 Colo. 401, 107 P. 1087, Northwestern Mut. Life Ins. Co. v. Farnsworth, 60 Colo. 324, 153 P. 699, and New York Life Ins. Co. v. Fukushima, 74 Colo. 236, 220 P. 994, are cited to sustain the contention. Those cases have no application here and it is unnecessary for us to explore that question, because the court expressly found that the insured made the statements. That finding is supported by substantial evidence and will not be overthrown on appeal. Moreover, he received the policy and retained it in Ms possession for almost a year before this suit was instituted. The application containing the statements and representations was attached and made a part of it. Assuming that the answers were inserted by the medical examiner, insured could not retain the policy without ratifying the deception and becoming a party to it. Its retention constituted approval of the false .statements and precluded him from reaping the fruits of the fraud. New York Life Ins. Co. v. Fletcher, 117 U. S. 519, 6 S. Ct. 837, 29 L. Ed. 934; Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613, 36 S. Ct. 676, 60 L. Ed. 1202; Franco v. New York Life Ins. Co. (C. C. A.) 53 F.(2d) 562. The next argument advanced is that even though fraud was practiced, the company waived it by accepting the semi-annual premium in December, 1931, after the second physical examination had been conducted and all the facts made known. Waiver presupposes knowledge of the existing facts. Home Life Ins. Co. v. Myers (C. C. A.) 112 F. 846; Brotherhood of Railroad Trainmen v. Roberts, 48 Tex. Civ. App. 325, 107 S. W. 626; Sovereign Camp, W. O. W., v. Cameron (Tex. Civ. App.) 41 S.W.(2d) 283; Germania Life Ins. Co. v. Lauer, 123 Ky." }, { "docid": "1375208", "title": "", "text": "throughout the entire period until 1928. In seeking to obtain the bond of indemnity the law requires that the applicant observe the utmost good faith and deal fairly and honestly with the insurer in respect of all material facts about which inquiry is made in the application and as to which the applicant has or should presume to have knowledge or information. Stipcich v. Insurance Co., 277 U. S. 311, 317, 48 S. Ct. 512, 72 L. Ed. 895. One of the conditions of the Massachusetts statute, supra, is that to avoid a policy the misrepresentation or warranty be made with actual intent to deceive. Where one has made a false representation knowing it to be false, the law infers that it did so with intention to deceive. Hammatt v. Emerson, 27 Me. 308, 326, 46 Am. Dec. 598; Claflin v. Commonwealth Insurance Co., 110 U. S. 81, 95, 3 S. Ct. 507, 28 L. Ed. 76; Fidelity & Casualty Co. v. Bank of Timmonsville (C. C. A.) 139 F. 101. Ordinarily false representations will not avoid a policy unless the assured knew they were false or he was chargeable with such knowledge. Security Life Insurance Co. v. Brimmer (C. C. A.) 36 F.(2d) 176, 179; Wharton v. Ætna Life Insurance Co. (C. C. A.) 48 F.(2d) 37. It may be conceded that if the case were to be put on the question of “actual intent to deceive,” the evidence as to whether or not Cardarelli signed the application for the bond with actual intent to deceive, disclosed a jury question. It might be found, from the fact that he had absolute confidence in Peseosolido, that therefore there was no intentional deception or fraud in answering question 5 (e), supra. McDonough v. Metropolitan Life Ins. Co., 228 Mass. 450, 117 N. E. 836; Smardon v. Metropolitan Life Ins. Co., 243 Mass. 599, 137 N. E. 742. But even so we do not see how the answer to 14 (a), supra, can be explained. It was a plain, simple question—“Is applicant now in debt to you?” The answer is: “No.” We" }, { "docid": "834693", "title": "", "text": "L. Ins. Co. v. Wiggins (C. C. A.) 15 F.(2d) 646, 647; Campbell v. Business Men’s Assur. Co. (D. C.) 31 F.(2d) 571. The learned Circuit Court of Appeals of the Ninth Circuit in Northwestern Mut. L. Ins. Co. v. Wiggins, supra, says: “The insured made categorical answer to all questions. It must be assumed that such answers, if true, gave all information required to determine acceptance of the risk, and to avoid the risk or cancel the policy it must be shown that the answers were false and known to be false by the insured.” The statute invoked eliminates all defenses based upon representations concerning matters whieh did not contribute to the assured’s death. It prescribes no rule with reference to the effect tó be given to representations not within the ban of the statute. The effect of such representation is therefore a matter of general law. . Being a matter of general law and not dependent upon the local statute, this court will follow its own rule or the rule laid down by the Supreme Court of the United States. In Mutual L. Ins. Co. v. Hilton-Green, 241 U. S. 613, 36 S. Ct. 676, 680, 60 L. Ed. 1202, it is said: “Considered in most favorable light possible, the above quoted ineorreiri statements in the application are material representations;' and, nothing else appearing, if known to be untrue by assured when made, invalidate the policy without further proof of actual conscious design to defraud.” It is charged that the court erred in refusing to give defendant’s requested instruction No. 7 with reference to the previous consultations by assured with physicians and his treatment in hospitals. The instruction as given by the court is as follows: “The Court instructs the jury if you find and believe from the evidence that in his application for the policy of insurance involved in this ease the deceased, Omer W. Clabaugh, in answer to questions, stated to defendant’s medical examiner that he was in sound health, that he had never received treatment in any hospital, sanitarium or asylum and had not, within" }, { "docid": "21325212", "title": "", "text": "the physician. In answer to a later question: “What physician or physicians, if any, not named above, have you consulted or been examined or treated by within the past five years ?” To which ■the answer was, “None.” As the court in its opinion found the proof showed that from March 11,1922: “ * * * up to the date of the applications, Perrin (the insured) had received 111 such treatments (for chronic prostatitis and seminal vesiculitis), of which 32 were in 1922, 8 in 1923, and 71 in 1924 (up to the date of the applications, November 14, 1924). * * * ” This was a suit in equity, and the Circuit Court of Appeals upheld the District Court in cancelling the policy. Another distinction arises from a varying interpretation of the law as given in different jurisdictions. Thus, appellant cites in its brief the case of Germania Life Ins. Co. v. Klein, 25 Colo. App. 326, 137 P. 73, six different times, and the case of Lewis v. New York Life Insurance Co., 201 Mo. App. 48, 209 S. W. 625, eleven times. In both of these eases the policy of insurance was a Colorado contract. In Colorado the courts hold that where statements in an application for life insurance are false, and material to the risk on which the policy is based, the false statements avoid the policy whether the representations were the result of intention or of mistake, or whether made in good faith or not. In the state of Washington, which law governs the contract of insurance here • in question, both the statute and decisions require that the false statements must be made with intent to deceive. From the state of Washington appellant cites Day v. St. Paul Fire & Marine Ins. Co., III Wash. 49, 189 P. 95, 96, which involved a policy of insurance on an automobile. In that ease the insurance was obtained upon the representation: “That the automobile was manufactured in the year 1911, and that when purchased by respondent in October, 3911, was new and had cost respondent $3,400," }, { "docid": "719988", "title": "", "text": "securing & policy of insurance on the life or lives of any person or persons, citizens of this state, shall be deemed material, or render the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable, and whether it so contributed in any ease shall be a question for the jury.” See Salts v. Prudential I. Co., 140 Mo. App. 142, 120 S. W. 714; Lynch v. Prudential I. Co., 150 Mo. App. 461, 131 S. W. 145; Frazier v. Metropolitan L. I. Co., 161 Mo. App. 709, 141 S. W. 936; Dodt v. Prudential I. Co., 186 Mo. App. 168, 171 S. W. 655; Benson v. Metropolitan L. I. Co., 161 Mo. App. 480, 144 S. W. 122; State ex rel. John Hancock Mut. L. I. Co. v. Allen, 313 Mo. 384, 282 S. W. 46; Clark v. National L. & A. I. Co. (Mo. App.) 288 S. W. 944; Jenkins v. Covenant Mut. L. I. Co., 171 Mo. 375, 71 S. W. 688; Mathews v. Modern Woodmen of America, 236 Mo. 326, 139 S. W. 151, Ann. Cas. 1912D, 483; Bohannon v. Illinois B. L. Ass’n (Mo. App.) 20 S.W.(2d) 950. These cases are predicated on the theory that such statute abolished the distinction between conditions precedent and mere representations. We find nothing in the language of the statute to indicate such a legislative intent. There is a manifest distinction between a condition precedent and a representation of fact. The Missouri statute contains the word “misrepresentation” and omits the word '.'warranty” and the term “conditions precedent.” Likewise the Kansas statute, by its express language, is limited to misrepresentations made in obtaining or securing a policy of insurance. It is our conclusion that a condition precedent is not embraced within the word “misrepresentation” and is not within the purview of the Kansas statute. See Barker v. Metropolitan L. I. Co., 188 Mass. 542, 74 N. E. 945; Logan v. New York L. I. Co., supra; Southern Surety Co. v. Benton (Tex. Com. App.) 280" }, { "docid": "14681628", "title": "", "text": "false representations will not avoid a policy unless the assured knew they were false, or he were chargeable with sueh knowledge.” The burden of proof was, of course, upon the defendant, and fraud is not to be presumed. An applicant for insurance is not required, nor indeed expected, to disclose the faet of consulting a physician for slight or temporary ailments such as an ordinary cold, inability to sleep, constipation, headache, or the like. Adler v. New York Life Ins. Co. (C. C. A.) 33 F.(2d) 827, 832; Bankers’ Life Co. v. Hollister (C. C. A.) 33 F.(2d) 72, 74; Connecticut Mutual Life Ins. Co. v. Union Trust Co., 112 U. S. 250, 5 S. Ct. 119, 28 L. Ed. 708; Mutual Reserve Life Ins. Co. v. Dobler (C. C. A.) 137 F. 550; New York Life Ins. Co. v. Cumins (C. C. A.) 24 F.(2d) 1; Ward v. Standard Accident Ins. Co. (C. C. A.) 30 F.(2d) 328, 63 A. L. R. 842; New York Life Ins. Co. v. Moats (C. C. A.) 207 F. 481; Miller v. Maryland Casualty Co. (C. C. A.) 193 F. 343. In the case of Adler v. New York Life Ins. Co., supra, greatly relied upon by the defendant, it is said: “It may be that failure to remember diseases or treatments or omissions of sueh as are honestly thought to be trivial or not within the meaning of the questions in an application may disprove the presence of fraud.” Tn Bankers’ Life Co. v. Hollister, supra, the defendant contended that an answer to a similar question was false, and in the course of the opinion it is said: “Furthermore, the application must be liberally construed in favor of the insured, and, under the weight of authority, an applicant for insurance is not required or expected to disclose the faet of employing or consulting physicians or surgeons for slight and temporary ailments which leave no trace of injury to health, such as an ordinary cold or inability to sleep because of occasional excesses, such as existed in this case.” In the instant case" }, { "docid": "719987", "title": "", "text": "440, 29 A. L. R. 649, the court held a similar condition in a contract of insurance to be within section 4572, Ala. Code 1907, which reads as follows: “No written or oral misrepresentation, or warranty therein made, in the negotiation of a contract or policy of life insurance, or in the application therefor or proof of loss thereunder, shall defeat or void the policy, or prevent its attaching, unless such misrepresentation is made wifh actual intent to deceive, or unless the matter misrepresented increase the risk of loss.” The court held that in insurance law the word “warranty” and the term “condition precedent” are used interchangeably, and that the word “warranty” in such statute embraced a condition precedent. It will be noted that the Kansas statute contains neither the word “warranty” nor the term “condition precedent.” The Missouri courts in a number of cases have held that similar provisions in contracts of insurance are within the purview of section 6142, Mo. Rev. St. 1919, which reads as follows: “No misrepresentation made in obtaining or securing & policy of insurance on the life or lives of any person or persons, citizens of this state, shall be deemed material, or render the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable, and whether it so contributed in any ease shall be a question for the jury.” See Salts v. Prudential I. Co., 140 Mo. App. 142, 120 S. W. 714; Lynch v. Prudential I. Co., 150 Mo. App. 461, 131 S. W. 145; Frazier v. Metropolitan L. I. Co., 161 Mo. App. 709, 141 S. W. 936; Dodt v. Prudential I. Co., 186 Mo. App. 168, 171 S. W. 655; Benson v. Metropolitan L. I. Co., 161 Mo. App. 480, 144 S. W. 122; State ex rel. John Hancock Mut. L. I. Co. v. Allen, 313 Mo. 384, 282 S. W. 46; Clark v. National L. & A. I. Co. (Mo. App.) 288 S. W. 944; Jenkins v. Covenant Mut. L. I. Co., 171 Mo." }, { "docid": "14681627", "title": "", "text": "Seeurity Life Insurance v. Brimmer (C. C. A.) 36 F.(2d) 176, 179; Bankers’ Reserve Life Co. v. Matthews (C. C. A.) 39 F.(2d) 528, 537; Moulor v. American Life Ins. Co., 111 U. S. 335, 4 S. Ct. 466, 28 L. Ed. 447; Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613; Northwestern Mutual Life v. Wiggins (C. C. A.) 15 F.(2d) 646; New York Life Ins. Co. v. Griffith (C. C. A.) 35 F.(2d) 945; Adler v. New York Life Ins. Co. (C. C. A.) 33 F.(2d) 827; Metropolitan Life Ins. Co. v. Johnson, 105 Ark. 101, 150 S. W. 393. In Bankers’ Reserve Life Co. v. Matthews, supra, this court said with reference to misrepresentations alleged to have been falsely made: “Being representations, they do not void the contract, even though untrue in faet, provided they were honestly madé in the belief by insured that they were true. That is, they must be both untrue and knowingly falsely made by insured.” In Security Life Insurance v. Brimmer, supra, this court said: “Ordinarily false representations will not avoid a policy unless the assured knew they were false, or he were chargeable with sueh knowledge.” The burden of proof was, of course, upon the defendant, and fraud is not to be presumed. An applicant for insurance is not required, nor indeed expected, to disclose the faet of consulting a physician for slight or temporary ailments such as an ordinary cold, inability to sleep, constipation, headache, or the like. Adler v. New York Life Ins. Co. (C. C. A.) 33 F.(2d) 827, 832; Bankers’ Life Co. v. Hollister (C. C. A.) 33 F.(2d) 72, 74; Connecticut Mutual Life Ins. Co. v. Union Trust Co., 112 U. S. 250, 5 S. Ct. 119, 28 L. Ed. 708; Mutual Reserve Life Ins. Co. v. Dobler (C. C. A.) 137 F. 550; New York Life Ins. Co. v. Cumins (C. C. A.) 24 F.(2d) 1; Ward v. Standard Accident Ins. Co. (C. C. A.) 30 F.(2d) 328, 63 A. L. R. 842; New York Life Ins. Co. v. Moats (C. C. A.) 207" }, { "docid": "14530988", "title": "", "text": "it cannot be doubted that, if answered truly, the question and answer would have influenced the action of the company. “The usual rules as to the determination of questions of law and fact, or as to the province of the court and jury apply to insurance eases.” 7 Eneye. U. S. S. C. R. 212. This court in Keeton v. Jefferson Standard Life Ins. Co., 5 F.(2d) 183, has decided the point involved here as to the materiality of the questions and answers in an application for a life insurance policy. Judge Wad-dill says in the opinion: “In this case, the answers to the questions were of a character that the applicant could not have been mistaken about. * * * All of which answers, being material and of vital importance to the transactions thus consummated, were entirely false, and deceived and misled the insurance .companies into making the contracts of insurance. * * * Authorities to sustain these views might be cited almost without number.” * * * Again in Missouri State Life Ins. Co. v. Guess, 17 F.(2d) 450, this court, in an opinion by Judge Parker, said: “There is no doubt, of course, that representations of the sort contained in the application for reinstatement are material to the risk, and that, if false to the knowledge of applicant, they avoid the policy and warrant its cancellation. Mutual Life Ins, Co. v. Hilton-Green, 241 U. S. 613, 36 S. Ct. 676, 60 L. Ed. 1202; Keeton v. Jefferson Standard Life Ins. Co. (C. C. A. 4th) 5 F. (2d) 183. But, to warrant cancellation, the evidence as to fraud must be ‘clear, unequivocal, and convincing.’ 32 C. J. 1269; Maxwell Land-Grant Case, 121 U. S. 325, 381, 7 S. Ct. 1015, 30 L. Ed. 949; U. S. v. San Jacinto Tin Co., 125 U. S. 273, 300, 8 S. Ct. 850, 31 L. Ed. 747; U. S. v. Budd, 144 U. S. 154, 161, 12 S. Ct. 575, 36 L. Ed. 384; Lalone v. U. S., 164 U. S. 255, 257, 17 S. Ct. 74, 41 L. Ed." }, { "docid": "834691", "title": "", "text": "unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable, and whether it so contributed in any case shall be a question for the jury.” It is the claim of the defendant that there is but one test of materiality under this statute, and that is: Did or did not the matter represented actually contribute to the contingency or event upon whieh the policy became payable? The lower court by its charge informed the jury that misrepresentations as to matters whieh met the statutory test would not avoid the policy, unless, at the time the insured made them, he knew of the falsity of such statements, or that such statements were made with relation to matters of such character or nature that the company must have considered them within the personal knowledge of the applicant. We are of the opinion that this statute does not purport to create any defense to a suit upon an insurance policy, but that it destroys all defenses based, upon misrepresentations concerning matters whieh do not contribute to the death of the assured, whether such statements be warranties or representations. This statute leaves material representations as they were at common law. In Missouri a material representation to avoid a policy must be false, known to be such by the assured, or, if it consists of a mistake, that the mistake must be of such a character that the insurer must have regarded it as within the personal knowledge of the insured. State ex rel. Life Ins. Co. v. Allen, 310 Mo. 378, 276 S. W. 877; Simpson v. Metropolitan L. Ins. Co. (Mo. App.) 282 S. W. 454; Abernathy v. Springfield Mut. Assn. (Mo. App.) 284 S. W. 198. Ordinarily false representations will not avoid a policy unless the assured knew they were false, or he were chargeable with such knowledge. This seems to be the rule applied in the National courts. Moulor v. Am. L. Ins. Co, 111 U. S. 335, 4 S. Ct. 466, 28 L. Ed. 447; Northwestern Mut." }, { "docid": "14723879", "title": "", "text": "policy, contained the following: “8. During the past three years * * * no accident has been caused by an automobile owned or driven by Assured; nor any claim made against Assured as the result of an automobile accident except — No exceptions;” and “9. During, the past three years no company has refused to issue Automobile Insurance to the Assured, nor cancelled any insurance after issued, except — No exceptions.” It is not disputed that these representations were material to the risk and that the answers were false. The defense is that the soliciting agent made no inquiries whatever with reference to this subject-matter, but himself inserted the .answers knowing them to be false, and that the insured did not read the policy nor know of the representations which he was apparently charged with making. This defense cannot prevail. The ease is, we think, controlled by our decisions in Columbian Nat. Life Ins. Co. v. Harrison (C. C. A.) 12 F.(2d) 986, and Maryland Casualty Co. v. Eddy (C. C. A.) 239 F. 477. The policyholder is held strictly to knowledge of the contents of his policy (New York Life Ins. Co. v. Fletcher, 117 U. S. 519, 534, 6 S. Ct. 837, 29 L. Ed. 934; Lumber Underwriters v. Rife, 237 U. S. 605, 609, 35 S. Ct. 717, 59 L. Ed. 1140; Wyss-Thalman v. Maryland Casualty Co., 193 F. 55 [C. C. Pa.]; Conner v. Manchester Assur. Co., [C. C. A. 9] 130 F. 743, 70 L. R. A. 106; Louis P. Hyman & Co. v. U. S. Cast Iron P. & F. Co., 225 Ky. 510, 9 S.W.(2d) 226; Metropolitan Life Ins. Co. v. Freedman, Exec., 159 Mich. 114, 123 N. W. 547, 32 L. R. A. (N. S.) 298; the eases already cited from this circuit, and many others), and retention of it constitutes an adoption of the application and of the representations upon which such policy was issued. Nor is knowledge of the soliciting agent of the falsity of the answers to be imputed to the principal. By so falsifying the application or schedule" }, { "docid": "11512084", "title": "", "text": "the policy voidable as against the applicant and all who stand in no better position, whether such misrepresentation be made intentionally, or through mistake and in good faith (Silberstein v. Massachusetts Mutual Life Insurance Co., 1947, 189 Md. 182, 55 A.2d 334; Baker v. Continental Casualty Co., 1953, 201 Md. 464, 474, 94 A.2d 454; Hancock Mutual Life Insurance Co. of Boston, Massachusetts, v. Adams, 1954, 205 Md. 213, 221, 107 A.2d 111; A.L. I. Restatement, Contracts, sec. 476). Where evidence of bad faith or falsity or materiality is uncontradicted or clear and convincing, the court may so rule as a matter of law. * * *» See, also, Cohen v. Fort Dearborn Casualty Underwriters, 221 Mo.App. 741, 745-746, 285 S.W. 1024, 1026, and Smith v. American Automobile Ins. Co., 188 Mo. App. 297, 302-303, 175 S.W. 113, 114-115. The Supreme Court of the United States, in Phoenix Mut. Life Insurance Co. v. Raddin, 1887, 120 U.S. 183, 189, 7 S.Ct. 500, 502, 30 L.Ed. 644, had this to say about the effect of false answers to questions in an application for insurance: “Answers to questions propounded by the insurers in an application for insurance, unless they are clearly shown by the form of the contract to have been intended by both parties to be warranties, to be strictly and literally complied with, are to be construed as representations, as to which substantial truth in everything material to the risk is all that is required of the applicant. Moulor v. American Ins. Co., 111 U.S. 335 [4 S.Ct. 466, 28 L.Ed. 447]; Campbell v. New England Ins. Co., 98 Mass. 381; Thomson v. Weems, 9 App.Cas. 671. “The misrepresentation or concealment by the assured of any material fact entitles the insurers to avoid the policy. But the parties may by their contract make material a fact that would otherwise be immaterial, or make immaterial a fact that would otherwise be material. Whether there is other insurance on the same subject, and whether such insurance has been applied for and refused, are material facts, at least when statements regarding them are" }, { "docid": "3104886", "title": "", "text": "material and false it would avoid the policy whether made innocently or not. The insured argues that, under the law of Missouri, in order to avoid this policy, the answers, if material, must have been both false and fraudulent. In Missouri, to avoid a contract of insurance, a false representation of a material fact must have been fraudulently made. Grand Lodge, U. B. of F., etc., v. Massachusetts Bonding & Ins. Co., 324 Mo. 938, 25 S.W.2d 783, 787. See, also, Houston v. Metropolitan Life Ins. Co., 232 Mo.App. 195, 97 S.W.2d 856, 859; De Valpine v. New York Life Ins. Co., Mo.App., 105 S.W.2d 977, 980; New York Life Ins. Co. v. Calhoun, 8 Cir., 114 F.2d 526, 544. The common law distinction between statements of an insured which constitute representations and statements which are warranted to be true, is recognized in Missouri. In Grand Lodge, U. B. of F., etc., v. Massachusetts Bonding & Ins. Co., supra, 25 S.W.2d at page 787, the Supreme Court of Missouri said: “There is a distinction between a representation and a warranty. A representation is not, strictly speaking, a part of the contract, or the essence of it, but rather something collateral or preliminary, and in the nature of an inducement to it, while a warranty enters into and forms a part of the contract itself.” In Pacific Mut. Life Ins. Co. v. Glaser, 245 Mo. 377, 150 S.W. 549, 551, 45 L.R.A.,N.S., 222, the Court said: “In cases not included within the provisions of said section 6937 [(R.S.Mo. 1909), the Missouri Misrepresentation Statute, § 5843, R.S.Mo. 1939, Mo.R.S.A. § 5843], a well-recognized distinction exists between a representation and a warranty in a contract of insurance. A representation is not a part of the contract, ‘but only an inducement to make it,’ and will not invalidate the insurance unless false in a matter material to the risk. ' A warranty is a part of the contract, and must be strictly true, whether material to the risk or not. Aloe v. [Mutual Reserve Life] Ass’n, 147 Mo. 561, 49 S.W. 553; McDermott v." }, { "docid": "14530982", "title": "", "text": "M. Insurance Co., 179 U. S. 1, 21 S. Ct. 1, 45 L. Ed. 49; Iowa Life Insurance Co. v. Lewis, 187 U. S. 335, 23 S. Ct. 126, 47 L. Ed. 204. Upon the question of whether the materiality of a representation was a question for the court, or for the jury, the Virginia court has said: “Whether a representation is made and the terms in which it is made are questions of fact for the jury; but, when proved, we are of opinion that its materiality is a question for the court.” Metropolitan Insurance Co. v. Hayslett, 111 Va. 107, 68 S. E. 256. This construction seems to have been consistently followed by the Virginia court. New York Life Insurance Co. V. Franklin, 118 Va. 418, 87 S. E. 584; North River Ins. Co. v. Atkinson, 137 Va. 313, 139 S. E. 46. What the company had a right to demand and did demand of the plaintiff in answering the questions in the application “as a condition precedent to any binding contract” was “that he would observe the utmost good faith towards it, and make full, direct, and honest answers to all questions, without evasion or fraud, and without suppression, misrepresentation, or concealment of facts, with which the company ought to be made acquainted, and that by so doing, and only by so doing, would he be deemed to have made ‘fair and true answers.’ ” Moulor v. American Life Ins. Co., Ill U. S. 335, 4 S. Ct. 466, 28 L. Ed. 447. In our search of the authorities on this question, one of the most illuminating cases we have found is that of the Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613, 36 S. Ct. 676, 60 L. Ed. 1202. There admittedly false answers were made in an application for a life insurance policy and in the opinion Mr. Justice McReynolds said: “Considered in most favorable light possible, the above-quoted incorrect statements in the application are material representations; and, nothing else appearing, if known to bo untrue by assured when made, invalidate the policy" }, { "docid": "4144720", "title": "", "text": "merely construing the contract, no such private understanding would count, but the statute makes it crucial, unless the answer be material to the risk. We cannot say that it was material, that is, so plainly material as to justify a direction. It is probably true, though we need not so decide, that when applications are of the same kind, as both for life insurance, or both for accident, courts treat suppression by the insured of an earlier rejection as necessarily material to the risk and as ipso facto avoiding the poliey; Ætna Life Ins. Co. v. Moore, 231 U. S. 543, 34 S. Ct. 186, 58 L. Ed. 356; Prudential Ins. Co. v. Moore, 231 U. S. 560, 34 S. Ct. 191, 58 L. Ed. 367; Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613, 36 S. Ct. 676, 60 L. Ed. 1202; New York Life Ins. Co. v. Goerlich, 11 F.(2d) 838 (C. C. A. 6). Apparently the law of New York is the same. Tilbrook v. U. S. Casualty Co., 254 N. Y.. 619, 173 N. E. 892. The earlier case of Penn Mut. Life Ins. Co. v. Mechanics’ S. B. & T. Co., 72 F. 413, 430-432, 38 L. R. A. 33 (C. C. A. 6), is not in accord unless there be a difference between suppressing rejected applications and falsely stating the amount of other insurance carried. The question is here, however, whether the suppression of a rejected life application has the same effect in the ease of accident insurance. Columbian, etc., Co. v. Harrison, 12 F.(2d) 986 (C. C. A. 6), Missouri, etc., Co. v. Pater, 15 F.(2d) 737 (C. C. A. 7), and Business Men’s Assur. Co. of America v. Campbell, 32 F.(2d) 995 (C. C. A. 8), decided that it has not, and that the materiality of prior rejections was for the jury. The Court of Appeals of New York has not passed upon the matter beyond saying that in general the materiality of the misrepresentation is a question of fact (Sebring v. Fidelity-Phenix Co., 255 N. Y. 382, 385, 174 N." } ]

[ { "docid": "22303649", "title": "", "text": "and therefore affirm the judgment below. I — I 1 — 1 We first consider whether petitioners’ conduct falls within the literal terms of the wire fraud statute. The statute prohibits using interstate wires to effect “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U. S. C. § 1343 (2000 ed., Supp. II). Two elements of this crime, and the only two that petitioners dispute here, are that the defendant engage in a “scheme or artifice to defraud,” ibid., and that the “object of the fraud ... be ‘[money or] property’ in the victim’s hands,” Cleveland v. United States, 531 U. S. 12, 26 (2000). Petitioners’ smuggling operation satisfies both elements. Taking the latter element first, Canada’s right to uncollected excise taxes on the liquor petitioners imported into Canada is “property” in its hands. This right is an entitlement to collect money from petitioners, the possession of which is “something of value” to the Government of Canada. McNally v. United States, 483 U. S. 350, 358 (1987) (internal quotation marks omitted). Valuable entitlements like these are “property” as that term ordinarily is employed. See Leocal v. Ashcroft, 543 U. S. 1, 9 (2004) (“When interpreting a statute, we must give words their ordinary or natural meaning” (internal quotation marks omitted)); Black’s Law Dictionary 1382 (4th ed. 1951) (defining “property” as “extending] to every species of valuable right and interest”). Had petitioners complied with this legal obligation, they would have paid money to Canada. Petitioners’ tax evasion deprived Canada of that money, inflicting an economic injury no less than had they embezzled funds from the Canadian treasury. The object of petitioners’ scheme was to deprive Canada of money legally due, and their scheme thereby had as its object the deprivation of Canada’s “property.” The common law of fraud confirms this characterization of Canada’s right to excise taxes. The right to be paid money has long been thought to be a species of property. See 3 W. Blackstone, Commentaries on the Laws of England 153-155 (1768) (classifying" } ]

[ { "docid": "20983869", "title": "", "text": "officials; or (2) fraud against a foreign bank. The court finds that the wire fraud alleged here cannot qualify as the relevant SUA, because the alleged scheme is not sufficiently domestic and is therefore not actionable under U.S. law. However, the Government has adequately alleged at least one alternative SUA: an offense against a foreign nation involving the misappropriation, theft, or embezzlement of public funds by or for the benefit of public officials. 1. Wire Fraud Citing to Pasquantino v. United States, 544 U.S. 349, 125 S.Ct. 1766, 161 L.Ed.2d 619 (2005), the Government first argues that domestic wire fraud under 18 U.S.C. § 1343 qualifies as the relevant SUA. In Pasquantino, a phone call was made in the United States to place an order for liquor, which was later smuggled into Canada in violation of Canadian tax laws. The Supreme Court held that the wire fraud statute applied to this conduct, noting that it prohibited the use of “U.S. interstate wires to execute a scheme to defraud a foreign sovereign of tax revenue.” Id. at 371, 125 S.Ct. 1766. However, Pasquantino was decided in 2005, before the Supreme Court articulated a presumption against extraterritoriality in Morrison v. National Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). It is true that the Morrison court distinguished, rather than overruled, Pasquantino. But it did so by noting that that the wire fraud at issue in Pasquantino’ “was complete the moment they executed the scheme inside the United States,’ ” and further noting that it was “[t]his domestic element of petitioners’ conduct [that] the Government is punishing.’” Morrison, 561 U.S. at 272, 130 S.Ct. 2869 (quoting Pasquantino, 544 U.S. at 371, 125 S.Ct. 1766) (emphases added). Four years later, applying Morrison in the RICO context, the Second Circuit explicitly held that the wire fraud statute does not apply extraterritorially. See RJR Nabisco, Inc., 764 F.3d 129, 139 (2d Cir.2014) (“[W]e conclude that the wire fraud and money fraud statutes ... do not overcome Morrison’s presumption against extraterritoriality”). In light of the Morrison presumption, the Second Circuit has also" }, { "docid": "22281594", "title": "", "text": "a district court’s denial of a motion to dismiss an indictment for failure to state an offense. Id. B. Analysis Mail and wire fraud are both defined as “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. §§ 1341, 1343. Defendants challenge their convictions on the ground that the indictment failed to state an offense under either statute, because Microsoft was only deprived of “potential profits” which are not “money or property” under the law. We do not agree. There are four main Supreme Court cases interpreting the phrase “money or property” in the relevant statutes: McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), superseded by statute, 18 U.S.C. § 1346; Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987); Cleveland v. United States, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000); and Pasquantino v. United States, 544 U.S. 349, 125 S.Ct. 1766, 161 L.Ed.2d 619 (2005). McNally, chronologically first, held that the definition of property does not reach “the intangible right of the citizenry to good government.” McNally, 483 U.S. at 356, 107 S.Ct. 2875. Later that same year in Carpenter, the Court clarified that “McNally did not limit the scope of § 1341 to tangible as distinguished from intangible property rights.” Carpenter, 484 U.S. at 25, 108 S.Ct. 316. In Carpenter, the Court also held that “[c]onfidential business information” qualified as property under the mail fraud statute. Id. at 26, 108 S.Ct. 316. Cleveland held that business licenses issued by a state “do not qualify as ‘property’ within § 1341’s compass.” Cleveland, 531 U.S. at 15, 121 S.Ct. 365. The Court went on to explain that to qualify as property “the thing obtained must be property in the hands of the victim.” Id. Finally, in Pasquantino, the Supreme Court held that “an entitlement to collect money from [a party]” is money or property under the mail and wire fraud statutes. 544 U.S. at 355, 125 S.Ct. 1766. In Pasquantino, the" }, { "docid": "5594048", "title": "", "text": "MESKILL, Circuit Judge: This appeal presents the question whether a scheme to defraud the Canadian government of tax revenue is cognizable under the federal wire fraud statute, 18 U.S.C. § 1343. In addressing that issue, the district court adopted the reasoning of the First Circuit in United States v. Boots, 80 F.3d 580 (1st Cir.), cert. denied, — U.S. -, 117 S.Ct. 263, 136 L.Ed.2d 188 (1996), and concluded that the common law “revenue rule” and other prudential considerations precluded application of the federal wire fraud statute in alleged schemes to defraud foreign governments of tax revenue. Because we disagree with the reasoning in Boots, we reverse the order of the district court. BACKGROUND In recent years, Canada has dramatically raised taxes and duties on the sale of liquor and tobacco products. These tax increases have created a lucrative “black market” for smugglers, who buy liquor and tobacco products in the United States and secretly deliver them into Canada for resale in various Canadian cities. On February 29, 1996, the government filed a one count indictment in the United States District Court for the Northern District of New York, charging Robert Trapilo, Lyle David Pierce, III, Regina Pierce and Wayne Stehlin with a money laundering conspiracy in violation of 18 U.S.C. § 1956(a)(1)-(2) and (h). The indictment alleges that the appellees conspired to engage in a series of financial transactions that involved the proceeds of, and were intended to promote, a scheme to defraud the Canadian government of tax revenue, in violation of the wire fraud statute, 18 U.S.C. § 1343. This “scheme to defraud” constitutes the specified unlawful activity for purposes of the money laundering statute. The conspiracy charge arises out of the appellees’ alleged participation in a smuggling organization that operated within the St. Regis Mohawk Indian Reservation in upstate New York. The reservation, consisting of a five mile strip of land straddling the international border between the state of New York and the Canadian provinces of Quebec and Ontario, allegedly served as the conspiracy’s hub for the delivery of tax free liquor into Canada. The appellees are" }, { "docid": "5821447", "title": "", "text": "RICO claim, a plaintiff must show: (1) a violation of the RICO statute ...; (2) an injury to business or property; and (3) that the injury was caused by the violation of [RICO].” De Falco v. Bernas, 244 F.3d 286, 305 (2d Cir.2001) (internal quotation marks and citation omitted), cert. denied, — U.S. -, 122 S.Ct. 207, — L.Ed.2d - (2001). Canada alleges that defendants violated RICO by “conducting] or participating] ... in the conduct of [an] enterprise’s affairs through a pattern of racketeering activity,” namely repeated instances of mail fraud, 18 U.S.C. § 1341, and wire fraud, 18 U.S.C. § 1343, in violation of 18 U.S.C. § 1962(c). Second, Canada alleges a conspiracy, in violation of 18 U.S.C. § 1962(d), to violate subsections (a), (b) and (c) of section 1962. Canada explains that these RICO violations were the proximate cause of injury to its “property” because it was deprived of revenue from tobacco duties and taxes and was forced to spend money to stop defendants’ illegal activity. Defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In a thorough and thoughtful opinion, the district court rejected some of the grounds of defendants’ motion, finding that Canada is a “person” entitled to bring a RICO action and refusing to dismiss the action under the act-of-state and political-question doctrines. See Attorney General of Canada v. RJ Reynolds Tobacco Holdings, Inc., 103 F.Supp.2d 134, 144-50 (N.D.N.Y.2000). Nonetheless, the district court granted the motion to dismiss because it held that Canada’s lost revenue claims were barred by the revenue rule; that a government’s claim for damages based on increased law enforcement and related costs does not satisfy civil RICO’s requirement that the plaintiff suffer an injury to its commercial interests; and that RICO does not provide for the disgorgement and other equitable relief requested by Canada. See id. at 140-44, 150-55. With regard to the revenue rule, the district court explained: Recognizing the existence of the Revenue Rule ... only begs the impending question — whether the instant civil RICO claim commenced by Canada is precluded by that" }, { "docid": "22281595", "title": "", "text": "McNally, chronologically first, held that the definition of property does not reach “the intangible right of the citizenry to good government.” McNally, 483 U.S. at 356, 107 S.Ct. 2875. Later that same year in Carpenter, the Court clarified that “McNally did not limit the scope of § 1341 to tangible as distinguished from intangible property rights.” Carpenter, 484 U.S. at 25, 108 S.Ct. 316. In Carpenter, the Court also held that “[c]onfidential business information” qualified as property under the mail fraud statute. Id. at 26, 108 S.Ct. 316. Cleveland held that business licenses issued by a state “do not qualify as ‘property’ within § 1341’s compass.” Cleveland, 531 U.S. at 15, 121 S.Ct. 365. The Court went on to explain that to qualify as property “the thing obtained must be property in the hands of the victim.” Id. Finally, in Pasquantino, the Supreme Court held that “an entitlement to collect money from [a party]” is money or property under the mail and wire fraud statutes. 544 U.S. at 355, 125 S.Ct. 1766. In Pasquantino, the defendants engaged in a scheme to avoid Canadian excise taxes on liquor. The Court found that the defendants were attempting to “deprive Canada of money legally due,” id. at 356, 125 S.Ct. 1766, and that “Canada’s right to uncollected excise taxes ... is ‘property’ in its hands,” id. at 355, 125 S.Ct. 1766. Under this line of cases, we conclude that Microsoft’s right to full payment for that software is “money or property.” Microsoft had a right to full payment for its software and was deprived of that right when Defendants fraudulently obtained the software for less than full payment. We therefore reject Defendants’ characterization of Microsoft’s loss as only the expectation of “potential profits.” It does not affect our analysis that Defendants obtained the software through third party distributors. Microsoft only sold the software to those distributors with the agree ment that it would only be resold to other AERs or to AE users. The mere fact that the software traveled through other hands on its way from Microsoft to Defendants is immaterial: Microsoft" }, { "docid": "5821446", "title": "", "text": "guilty to aiding and abetting the introduction of merchandise into the United States by means of false and fraudulent practices. Several individuals involved in the scheme pled guilty to crimes such as wire fraud, aiding and abetting smuggling, conspiring to defraud the United States, currency violations, money laundering and criminal RICO violations. In the present action, Canada brings claims against defendants under RICO’s civil enforcement provision. RICO is a broadly worded statute that “has as its purpose the elimination of the infiltration of organized crime and racketeering into legitimate organizations operating in interstate commerce.” S.Rep. No. 91-617, at 76 (1969); see Statement of Findings and Purpose, Organized Crime Control Act of 1970, Pub.L. 91-452, 84 Stat. 922, 922-23 (1970). “RICO provides that ‘[a]ny person injured in his business or property by reason of a RICO violation may bring a civil action to recover treble damages.” Metromedia Co. v. Fugazy, 983 F.2d 350, 368 (2d Cir.1992) (quoting 18 U.S.C. § 1964(c)), cert. denied, 508 U.S. 952, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993). “To establish a RICO claim, a plaintiff must show: (1) a violation of the RICO statute ...; (2) an injury to business or property; and (3) that the injury was caused by the violation of [RICO].” De Falco v. Bernas, 244 F.3d 286, 305 (2d Cir.2001) (internal quotation marks and citation omitted), cert. denied, — U.S. -, 122 S.Ct. 207, — L.Ed.2d - (2001). Canada alleges that defendants violated RICO by “conducting] or participating] ... in the conduct of [an] enterprise’s affairs through a pattern of racketeering activity,” namely repeated instances of mail fraud, 18 U.S.C. § 1341, and wire fraud, 18 U.S.C. § 1343, in violation of 18 U.S.C. § 1962(c). Second, Canada alleges a conspiracy, in violation of 18 U.S.C. § 1962(d), to violate subsections (a), (b) and (c) of section 1962. Canada explains that these RICO violations were the proximate cause of injury to its “property” because it was deprived of revenue from tobacco duties and taxes and was forced to spend money to stop defendants’ illegal activity. Defendants moved to dismiss the complaint pursuant" }, { "docid": "22229646", "title": "", "text": "tax-related frauds out of similar federal criminal statutes. The Department’s prosecution guidelines require prosecutors considering a tax-related mail fraud or wire fraud or bank fraud prosecution (or a related RICO prosecution) to obtain approval from high-level Department officials. And those guidelines specify that the Department will grant that approval only where there is at issue “a large fraud loss or a substantial pattern of conduct” and will not do so, absent “unusual circumstances,” in cases involving simply “one person’s tax liability.” Dept. of Justice, United States Attorneys’ Manual §6-4.210(A) (2007), online at http://www.justice.gov/usao/eousa/foia_reading_room/ usam/title6/4mtax.htm (as visited Jan. 20,2010, and available in Clerk of Court’s case file); see also §6-4.210(B) (explaining that the Department “will not authorize the use of mail, wire or bank fraud charges to convert routine tax prosecutions into RICO ... cases”). This case involves an extensive pattern of fraudulent conduct, large revenue losses, and many different unrelated potential taxpayers. The Department’s guidelines would appear to authorize prosecution in these circumstances. And limiting my consideration to these circumstances, I would find that this RICO complaint asserts a valid harm to “business or property.” I need not and do not express a view as to how or whether RICO’s civil action provisions apply to simpler instances of individual tax liability. This conclusion is virtually compelled by Pasquantino v. United States, 544 U. S. 349 (2005), a case that we decided only five years ago. We there pointed out that the right to uncollected taxes is an “entitlement to collect money . . . , the possession of which is ‘something of value.’ ” Id., at 355 (quoting McNally v. United States, 483 U. S. 350, 358 (1987)). Such an entitlement “has long been thought to be a species of property.” 544 U. S., at 356 (citing 3 W. Blackstone, Commentaries on the Laws of England 153-155 (1768)). And “fraud at common law included a scheme to deprive a victim of his entitlement to money.” 544 U. S., at 356. We observed that tax evasion “inflict[s] an economic injury no less than” the “embezzle[ment] [of] funds from the ... treasury.”" }, { "docid": "22303647", "title": "", "text": "contended that the Government lacked a sufficient interest in enforcing the revenue laws of Canada, and therefore that they had not committed wire fraud. App: 48-57. The District Court denied the motion, and the case went to trial. The jury convicted petitioners of wire fraud. Petitioners appealed their convictions to the United States Court of Appeals for the Fourth Circuit, again urging that the indictment failed to state a wire fraud offense. They argued that their prosecution contravened the common-law revenue rule, because it required the court to take cognizance of the revenue laws of Canada. Over Judge Hamilton’s dissent, the panel agreed and reversed the convictions. 305 F. 3d 291, 295 (2002). Petitioners also argued that Canada’s right to collect taxes from them was not “money or property” within the meaning of the wire fraud statute, but the panel unanimously rejected that argument. Id., at 294-295; id., at 299 (Hamilton, J., dissenting). The Court of Appeals granted rehearing en banc, vacated the panel’s decision, and affirmed petitioners’ convictions. 336 F. 3d 321 (CA4 2003). It concluded that the common-law revenue rule, rather than barring any recognition of foreign revenue law, simply allowed courts to refuse to enforce the tax judgments of foreign nations, and therefore did not preclude the Government from prosecuting petitioners. Id., at 327-329. The Court of Appeals held as well that Canada’s right to receive tax revenue was “money or property” within the meaning of the wire fraud statute. Id., at 331-332. We granted certiorari to resolve a conflict in the Courts of Appeals over whether a scheme to defraud a foreign government of tax revenue violates the wire fraud statute. 541 U. S. 972 (2004). Compare United States v. Boots, 80 F. 3d 580, 587 (CA1 1996) (holding that a scheme to defraud a foreign nation of tax revenue does not violate the wire fraud statute), with United States v. Trapilo, 130 F. 3d 547, 552-553 (CA2 1997) (holding that a scheme to defraud a foreign nation of tax revenue violates the wire fraud statute). We agree with the Court of Appeals that it does" }, { "docid": "22303653", "title": "", "text": "of tax revenue. Cleveland is therefore consistent with our conclusion that Canada’s entitlement is “property” as that word is used in the wire fraud statute. Turning to the second element at issue here, petitioners’ plot was a “scheme or artifice to defraud” Canada of its valuable entitlement to tax revenue. The evidence showed that petitioners routinely concealed imported liquor from Canadian officials and failed to declare those goods on customs forms. See 336 F. 3d, at 333. By this conduct, they represented to Canadian customs officials that their drivers had no goods to declare. This, then, was a scheme “designed to defraud by representations,” Durland v. United States, 161 U. S. 306, 313 (1896), and therefore a “scheme or artifice to defraud” Canada of taxes due on the smuggled goods. Neither the antismuggling statute, 18 U. S. C. § 546, nor U. S. tax treaties, see Attorney General of Canada v. R. J. Reynolds Tobacco Holdings, Inc., 268 F. 3d 103, 115-119 (CA2 2001), convince us that petitioners’ scheme falls outside the terms of the wire fraud statute. Unlike the treaties and the antismuggling statute, the wire fraud statute punishes fraudulent use of domestic wires, whether or not such conduct constitutes smuggling, occurs aboard a vessel, or evades foreign taxes. See post, at 380, n. 9 (Ginsburg, J., dissenting) (noting that the antismuggling statute does not apply to this prosecution). Petitioners would be equally liable if they had used interstate wires to defraud Canada not of taxes due, but of money from the Canadian treasury. The wire fraud statute “applies without differentiation” to these two categories of fraud. Clark v. Martinez, 543 U. S. 371, 378 (2005). “To give these same words a different meaning for each category would be to invent a statute rather than interpret one.” Ibid. We therefore decline to “interpret [this] criminal statute more narrowly than it is written.” Brogan v. United States, 522 U. S. 398, 406 (1998). III We next consider petitioners’ revenue rule argument. Petitioners argue that, to avoid reading § 1343 to derogate from the common-law revenue rule, we should construe the" }, { "docid": "13043199", "title": "", "text": "or falsification of material facts in violation of 18 U.S.C. sections 2(b) and 1001. Accordingly, Bucey’s conviction for this offense must be reversed and counts 10 and 11 dismissed. C. Mail and Wire Fraud Counts Bucey raises two principal objections in connection with the mail and wire fraud counts. First, he contends that the indictment is legally insufficient to allege a violation of the mail and wire fraud statutes because it does not adequately charge loss of property by the government. Alternatively, he argues that, even if the indictment sufficiently alleges violations of the mail and wire fraud statutes, the government failed to prove at trial that the government in fact did or would have lost income tax revenue as a consequence of Bucey’s actions. In McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), the Supreme Court held that the mail fraud statute is limited to schemes “aimed at causing deprivations of money or property.” Id., 107 S.Ct. at 2881. Hence, the McNally Court determined that the citizen’s intangible right to honest government is not a protectible property right for purposes of mail fraud. The Court has since made clear, however, that “property” may comprise both tangible and intangible property rights. See Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987) (holding that confidential business information constitutes “property” protected by the mail and wire fraud statutes). Thus, the fact that the government’s interest in unpaid taxes is intangible is no definitive obstacle to a mail or wire fraud conviction. See United States v. Porcelli, 865 F.2d 1352, 1360 (2d Cir.1989). The determinative inquiry is whether Bu-cey’s money laundering scheme defrauded the federal government of a property right, thereby injuring the government in its role as a “property-holder.” See McNally, 107 S.Ct. at 2882 n. 9. With respect to the mail fraud counts, the indictment alleges that Bucey “devised and intended to devise a scheme and artifice to defraud the United States of money and property, that is, income taxes.” Indictment 11 2 at 8. Bucey argues that this allegation" }, { "docid": "22303688", "title": "", "text": "of tax revenues owed pursuant to their own, sovereign, excise laws.” 336 F. 3d 321, 343 (CA4 2003) (en banc) (Gregory, J., dissenting). I The Government’s prosecution of David Pasquantino, Carl Pasquantino, and Arthur Hilts for wire fraud was grounded in Canadian customs and tax laws. The wire fraud statute, 18 U. S. C. § 1343, required the Government to allege and prove that the defendants engaged in a scheme to defraud a victim — here, the Canadian Government — of money or property. See ante, at 356 (describing Canada as the “victim” of a scheme having “as its object the deprivation of Canada’s ‘property’ ”). To establish the fraudulent nature of the defendants’ scheme and the Canadian Government’s entitlement to the money withheld by the defendants, the United States offered proof at trial that Canada imposes import duties on liquor, and that the defendants intended to evade those duties. See App. to Pet. for Cert. 58a; App. 65-74. The defendants’ convictions for wire fraud therefore resulted from, and could not have been obtained without proof of, their intent to violate Canadian revenue laws. See United States v. Pierce, 224 F. 3d 158, 166-168 (CA2 2000) (“If no Canadian duty or tax actually existed, the [defendants] were no more guilty of wire fraud than they would have been had they used the wires” to smuggle liquor into New York City, “in the sincere but mistaken belief that New York City imposes a duty on such . . . shipments.”). The United States Government’s reliance on Canadian customs and tax laws continued at sentencing. The United States Sentencing Guidelines mandated that the defendants be sentenced on the basis of, among other things, the amount by which the defendants defrauded the Canadian Government. See United States Sentencing Commission, Guidelines Manual §2Fl.l(b)(l) (Nov. 2000). Accordingly, the District Court calculated the number of cases of liquor smuggled into Canada and the aggregate amount of import duties evaded by the defendants. The court concluded that the Pasquantinos avoided over $2.5 million in Canadian duties, and Hilts, over $1.1 million. See App. 97-101, 104-105. The resulting" }, { "docid": "22303650", "title": "", "text": "States, 483 U. S. 350, 358 (1987) (internal quotation marks omitted). Valuable entitlements like these are “property” as that term ordinarily is employed. See Leocal v. Ashcroft, 543 U. S. 1, 9 (2004) (“When interpreting a statute, we must give words their ordinary or natural meaning” (internal quotation marks omitted)); Black’s Law Dictionary 1382 (4th ed. 1951) (defining “property” as “extending] to every species of valuable right and interest”). Had petitioners complied with this legal obligation, they would have paid money to Canada. Petitioners’ tax evasion deprived Canada of that money, inflicting an economic injury no less than had they embezzled funds from the Canadian treasury. The object of petitioners’ scheme was to deprive Canada of money legally due, and their scheme thereby had as its object the deprivation of Canada’s “property.” The common law of fraud confirms this characterization of Canada’s right to excise taxes. The right to be paid money has long been thought to be a species of property. See 3 W. Blackstone, Commentaries on the Laws of England 153-155 (1768) (classifying a right to sue on a debt as personal property); 2 J. Kent, Commentaries on American Law *351 (same). Consistent with that understanding, fraud at common law included a scheme to deprive a victim of his entitlement to money. For instance, a debtor who concealed his assets when settling debts with his creditors thereby committed common-law fraud. 1 J. Story, Equity Jurisprudence § 378 (I. Redfield 10th rev. ed. 1870); Chesterfield v. Janssen, 28 Eng. Rep. 82, 2 Ves. Sen. 125 (ch. 1750); 1 S. Rapalje & R. Lawrence, A Dictionary of American and English Law 546 (1883). That made sense given the economic equivalence between money in hand and money legally due. The fact that the victim of the fraud happens to be the government, rather than a private party, does not lessen the injury. Our conclusion that the right to tax revenue is property in Canada’s hands, contrary to petitioners’ contentions, is consistent with Cleveland, supra. In that case, the defendant, Cleveland, had obtained a video poker license by making false statements on" }, { "docid": "3780098", "title": "", "text": "S.Ct. 1443 (“Each wiring ‘was essential to the perpetuation of [the Association]^ scheme.”)). Finally, we concluded that, under the reasoning in Schmuck, each wiring contributed to the entire scheme and made each subsequent individual fraudulent transaction series more likely to be successful and less likely to be detected. See Morelli, 169 F.3d at 807. Based upon the Supreme Court’s decisions in Santos, Schmuck, and Kann, and our decision in Morelli we hold that unpaid taxes, which are unlawfully disguised and retained by means of the filing of false tax returns through the U.S. mail, constitute “proceeds” of mail fraud for purposes of supporting a charge of federal money laundering. Here, 4% of the unreported gross receipts that should have been paid as tax to the Virgin Islands but were instead included in the lump sums of money which the defendants sent to Amman, Jordan, were clearly “proceeds” of the fraudulent scheme perpetuated by defendants. Specifically, the defendants’ fraudulent scheme was that of concealing certain gross receipts from the Virgin Islands government through the mailing of fraudulent tax returns in order to defraud, cheat, and deprive the government of the 4% gross receipts taxes it was owed, thus enabling the defendants to unlawfully retain such government property and profit from their scheme. See Pasquantino v. United States, 544 U.S. 349, 355-56, 125 S.Ct. 1766, 161 L.Ed.2d 619 (2005) (holding that Canada’s right to uncollected excise taxes on imported liquor is “property” in its hands, depriving Canada of that money inflicts “an economic injury no less than had they embezzled the funds from the Canadian treasury.”); Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 68 L.Ed. 968 (1924) (explaining that to defraud the United States primarily means “to cheat the government out of property or money” and to deprive the government of “something of value by trick, deceit, chicane, or overreaching”). Here, the mailings were both for the purpose of executing the scheme and were material to the consummation of the scheme. See Kann, 323 U.S. at 94, 65 S.Ct. 148. The use of the mail to file fraudulent" }, { "docid": "22229648", "title": "", "text": "Ibid. And we consequently held that “Canada’s right to uncollected excise taxes on the liquor petitioners imported into Canada” is “ ‘property’ ” within the terms of the mail fraud statute. Id., at 355. Hemi points in reply to our decision in Hawaii v. Standard Oil Co. of Cal., 405 U. S. 251 (1972). But that case involved not a loss of tax revenues, but “injury to the general economy of a State” — insofar as it was threatened by violations of antitrust law. Id., at 260. Hawaii’s interest, both more general and derivative of harm to individual businesses, differs significantly from the particular tax loss at issue in Pasquantino and directly at issue here. We have previously made clear that the compensable injury for RICO purposes is the harm caused by the predicate acts. See generally Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 495-496 (1985); cf. Cleveland v. United States, 531 U. S: 12, 25 (2000). I can find no convincing reason in the context of this case to distinguish in the circumstances present here between “property” as used in the mail fraud statute and “property” as used in RICO. Hence, I would postpone for another day the question whether RICO covers instances where little more than the liability of an individual taxpayer is at issue. And I would find in the respondent’s favor here. With respect, I dissent." }, { "docid": "22303652", "title": "", "text": "his license application. Id., at 16-17. We held that a State’s interest in an unissued video poker license was not “property,” because the interest in choosing particular licensees was “‘purely regulatory’” and “[could not] be economic.” Id., at 22-23. We also noted that “the Government nowhere allege[d] that Cleveland defrauded the State of any money to which the State was entitled by law.” Ibid. Cleveland is different from this case. Unlike a State’s interest in allocating a video poker license to particular applicants, Canada’s entitlement to tax revenue is a straightforward “economic” interest. There was no suggestion in Cleveland that the defendant aimed at depriving the State of any money due under the license; quite the opposite, there was “no dispute that [the defendant’s partnership] paid the State of Louisiana its proper share of revenue” due. Id., at 22. Here, by contrast, the Government alleged and proved that petitioners’ scheme aimed at depriving Canada of money to which it was entitled by law. Canada could hardly have a more “economic” interest than in the receipt of tax revenue. Cleveland is therefore consistent with our conclusion that Canada’s entitlement is “property” as that word is used in the wire fraud statute. Turning to the second element at issue here, petitioners’ plot was a “scheme or artifice to defraud” Canada of its valuable entitlement to tax revenue. The evidence showed that petitioners routinely concealed imported liquor from Canadian officials and failed to declare those goods on customs forms. See 336 F. 3d, at 333. By this conduct, they represented to Canadian customs officials that their drivers had no goods to declare. This, then, was a scheme “designed to defraud by representations,” Durland v. United States, 161 U. S. 306, 313 (1896), and therefore a “scheme or artifice to defraud” Canada of taxes due on the smuggled goods. Neither the antismuggling statute, 18 U. S. C. § 546, nor U. S. tax treaties, see Attorney General of Canada v. R. J. Reynolds Tobacco Holdings, Inc., 268 F. 3d 103, 115-119 (CA2 2001), convince us that petitioners’ scheme falls outside the terms of the" }, { "docid": "22303645", "title": "", "text": "Justice Thomas delivered the opinion of the Court. At common law, the revenue rule generally barred courts from enforcing the tax laws of foreign sovereigns. The question presented in this case is whether a plot to defraud a foreign government of tax revenue violates the federal wire fraud statute, 18 U. S. C. § 1343 (2000 ed., Supp. II). Because the plain terms of § 1343 criminalize such a scheme, and because this construction of the wire fraud statute does not derogate from the common-law revenue rule, we hold that it does. I Petitioners Carl J. Pasquantino, David B. Pasquantino, and Arthur Hilts were indicted for and convicted of federal wire fraud for carrying out a scheme to smuggle large quantities of liquor into Canada from the United States. According to the evidence presented at trial, the Pasquantinos, while in New York, ordered liquor over the telephone from discount package stores in Maryland. See 336 F. 3d 321, 325 (CA4 2003) (en banc). They employed Hilts and others to drive the liquor over the Canadian border, without paying the required excise taxes. Ibid. The drivers avoided paying taxes by hiding the liquor in their vehicles and failing to declare the goods to Canadian customs officials. Id., at 333. During the time of petitioners’ smuggling operation, between 1996 and 2000, Canada heavily taxed the importation of alcoholic beverages. See 1997 S. C., ch. 36, §§ 21.1(1), 21.2(1); Excise Act Schedule 1.(1), R. S. C., ch. E-14 (1985); Excise Act 2001, Schedule 4, ch. 22, 2002 S. C. 239. Uncontested evidence at trial showed that Canadian taxes then due on alcohol purchased in the United States and transported to Canada were approximately double the liquor’s purchase. price. App. 65-66. Before trial, petitioners moved to dismiss the indictment on the ground that it stated no wire fraud offense. The wire fraud statute prohibits the use of interstate wires to effect “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U. S. C. § 1343 (2000 ed., Supp. II). Petitioners" }, { "docid": "22303687", "title": "", "text": "is a party). There is a treaty between the United States and Canada regarding the collection of taxes, but that accord requires certification by the taxing nation that the taxes owed have been “finally determined.” See Protocol Amending the Convention with Respect to Taxes on Income and on Capital, Sept. 26, 1980, S. Treaty Doc. No. 104-4, 2030 U. N. T. S. 236, 245, Art. 15, ¶ 2 (entered into force Nov. 9, 1995) (hereinafter Protocol). Moreover, the treaty is inapplicable to persons, like petitioners in this case, who are United States citizens at the time that the tax liability is incurred. Id., at 246, Art. 15, ¶ 8. Today’s novel decision is all the more troubling for its failure to take account of Canada’s primary interest in the matter at stake. United States citizens who have committed criminal violations of Canadian tax law can be extradited to stand trial in Canada. Canadian courts are best positioned to decide “whether, and to what extent, the defendants have defrauded the governments of Canada and Ontario out of tax revenues owed pursuant to their own, sovereign, excise laws.” 336 F. 3d 321, 343 (CA4 2003) (en banc) (Gregory, J., dissenting). I The Government’s prosecution of David Pasquantino, Carl Pasquantino, and Arthur Hilts for wire fraud was grounded in Canadian customs and tax laws. The wire fraud statute, 18 U. S. C. § 1343, required the Government to allege and prove that the defendants engaged in a scheme to defraud a victim — here, the Canadian Government — of money or property. See ante, at 356 (describing Canada as the “victim” of a scheme having “as its object the deprivation of Canada’s ‘property’ ”). To establish the fraudulent nature of the defendants’ scheme and the Canadian Government’s entitlement to the money withheld by the defendants, the United States offered proof at trial that Canada imposes import duties on liquor, and that the defendants intended to evade those duties. See App. to Pet. for Cert. 58a; App. 65-74. The defendants’ convictions for wire fraud therefore resulted from, and could not have been obtained without" }, { "docid": "22281602", "title": "", "text": "ways: (1) the evidence was insufficient to show Microsoft was deprived of property; (2) the evidence was insufficient to show that Microsoft was the “victim” of the fraud; and (3) based on the evidence, this case is only about a violation of antitrust or copyright law, not mail or wire fraud. a. We have already addressed Defendants’ first challenge. There is sufficient evidence to show that Microsoft was deprived of money or property because Microsoft’s right to proper payment for its software is money or property within the meaning of the statute. Furthermore, not only was Microsoft properly entitled to the payment, no other party — including the authorized distributors — was deprived of any right to proper payment. b. Second, Defendants contend that precedent requires that Microsoft be the “victim” of the fraud and that the evidence is insufficient to support such a finding here. There are two relevant cases on this point. First, Cleveland requires that the property taken be property “in the hands of the victim,” 531 U.S. at 15, 121 S.Ct. 365, suggesting that at least some level of convergence between the fraud and the loss is required. Second, we held in United States v. Lew, 875 F.2d 219 (9th Cir.1989), that, for mail fraud, “the intent must be to obtain money or property from the one who is deceived.” Id. at 221. Cleveland cannot be read to mean the property must actually be taken directly from the victim; depriving a victim of property rightfully due is enough. See Pasquantino, 544 U.S. at 355-56, 125 S.Ct. 1766 (holding that Canada’s right to receive tax payments on imported liquor was “ ‘property’ in its hands” under Cleveland). On sufficiency of the evidence review, viewing the evidence in the light most favorable to the government, we hold that Microsoft’s right to full payment was “property in its hands” under Cleveland and Pasquantino. In Lew, we held that for mail fraud, “the intent must be to obtain money or property from the one who is deceived.” 875 F.2d at 221. Defendants made misrepresentations directly to Microsoft in order to" }, { "docid": "22303646", "title": "", "text": "border, without paying the required excise taxes. Ibid. The drivers avoided paying taxes by hiding the liquor in their vehicles and failing to declare the goods to Canadian customs officials. Id., at 333. During the time of petitioners’ smuggling operation, between 1996 and 2000, Canada heavily taxed the importation of alcoholic beverages. See 1997 S. C., ch. 36, §§ 21.1(1), 21.2(1); Excise Act Schedule 1.(1), R. S. C., ch. E-14 (1985); Excise Act 2001, Schedule 4, ch. 22, 2002 S. C. 239. Uncontested evidence at trial showed that Canadian taxes then due on alcohol purchased in the United States and transported to Canada were approximately double the liquor’s purchase. price. App. 65-66. Before trial, petitioners moved to dismiss the indictment on the ground that it stated no wire fraud offense. The wire fraud statute prohibits the use of interstate wires to effect “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U. S. C. § 1343 (2000 ed., Supp. II). Petitioners contended that the Government lacked a sufficient interest in enforcing the revenue laws of Canada, and therefore that they had not committed wire fraud. App: 48-57. The District Court denied the motion, and the case went to trial. The jury convicted petitioners of wire fraud. Petitioners appealed their convictions to the United States Court of Appeals for the Fourth Circuit, again urging that the indictment failed to state a wire fraud offense. They argued that their prosecution contravened the common-law revenue rule, because it required the court to take cognizance of the revenue laws of Canada. Over Judge Hamilton’s dissent, the panel agreed and reversed the convictions. 305 F. 3d 291, 295 (2002). Petitioners also argued that Canada’s right to collect taxes from them was not “money or property” within the meaning of the wire fraud statute, but the panel unanimously rejected that argument. Id., at 294-295; id., at 299 (Hamilton, J., dissenting). The Court of Appeals granted rehearing en banc, vacated the panel’s decision, and affirmed petitioners’ convictions. 336 F. 3d 321 (CA4 2003)." }, { "docid": "22229647", "title": "", "text": "RICO complaint asserts a valid harm to “business or property.” I need not and do not express a view as to how or whether RICO’s civil action provisions apply to simpler instances of individual tax liability. This conclusion is virtually compelled by Pasquantino v. United States, 544 U. S. 349 (2005), a case that we decided only five years ago. We there pointed out that the right to uncollected taxes is an “entitlement to collect money . . . , the possession of which is ‘something of value.’ ” Id., at 355 (quoting McNally v. United States, 483 U. S. 350, 358 (1987)). Such an entitlement “has long been thought to be a species of property.” 544 U. S., at 356 (citing 3 W. Blackstone, Commentaries on the Laws of England 153-155 (1768)). And “fraud at common law included a scheme to deprive a victim of his entitlement to money.” 544 U. S., at 356. We observed that tax evasion “inflict[s] an economic injury no less than” the “embezzle[ment] [of] funds from the ... treasury.” Ibid. And we consequently held that “Canada’s right to uncollected excise taxes on the liquor petitioners imported into Canada” is “ ‘property’ ” within the terms of the mail fraud statute. Id., at 355. Hemi points in reply to our decision in Hawaii v. Standard Oil Co. of Cal., 405 U. S. 251 (1972). But that case involved not a loss of tax revenues, but “injury to the general economy of a State” — insofar as it was threatened by violations of antitrust law. Id., at 260. Hawaii’s interest, both more general and derivative of harm to individual businesses, differs significantly from the particular tax loss at issue in Pasquantino and directly at issue here. We have previously made clear that the compensable injury for RICO purposes is the harm caused by the predicate acts. See generally Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 495-496 (1985); cf. Cleveland v. United States, 531 U. S: 12, 25 (2000). I can find no convincing reason in the context of this case to" } ]

[ { "docid": "8045562", "title": "", "text": "unsecured creditors to join the assets and liabilities of two debtors. It is, in effect, a statement by the Court that the assets and liabilities of one debtor are substantially the same assets and liabilities of the second debtor.... ... [I]t logically follows that where two cases are substantively consolidated ... the preference provisions require us to treat the creditors of both debtors in substantially the same manner. In order for us to do so, we must assign a like filing date to both Debtors for purposes of the preference provisions. Evans Temple, 55 B.R. at 981-82 (citations omitted). The facts in this case meet all the standards articulated in Evans Temple, which emphasized that an order of consolidation is itself a statement that the two debtors are “hopelessly intertwined” and that their respective. assets and liabilities should be pooled. Beyond the actual fact of consolidation, the Evans Temple decision also focused on whether creditors consider the two debtors to be one. In this case, as the district court pointed out, evidence exists that the Bank did treat the debtors as one entity, as funds were taken from B & G accounts to satisfy Cordek’s debt. We agree with the district court that the Bank did not meet its burden of proving that the debtors were not treated as one. On appeal, the Bank, relying almost exclusively on In re Auto-Train Corp., Inc., 810 F.2d 270 (D.C.Cir.1987), argues that neither the district court nor the bankruptcy court gave proper consideration to the extreme prejudice that the preference date order has caused the Bank. In Auto-Train, the bankruptcy court substantively consolidated a wholly-owned subsidiary of a debtor in a pending bankruptcy case. Prior to the substantive consolidation, the subsidiary was not a debtor. The trustee used the retroactive filing date of the parent corporation to attack a transfer made by the subsidiary to one of its creditors. The District of Columbia Circuit reversed, holding that before ordering a consolidation nunc pro tunc, the bankruptcy court must use a balancing test to ensure that the relation back of a nunc pro tunc" } ]

[ { "docid": "8949743", "title": "", "text": "Framework for Substantive Consolidation While not specifically authorized by the bankruptcy code, bankruptcy courts have the power to order substantive consolidation by virtue of their general equitable powers. See, e.g., Union Savings Bank v. Augie/Restivo Baking Co. (In re Augie/Restivo Baking Co.), 860 F.2d 515, 518 & n. 1 (2d Cir.1988); Drabkin v. Midland-Ross Corp. (In re Auto-train Corp.), 810 F.2d 270, 276 (D.C.Cir.1987). The purpose of substantive consolidation is “to insure the equitable treatment of all creditors.” In re Murray Indus., 119 B.R. 820, 830 (Bankr.M.D.Fla.1990). It involves the pooling of the assets and liabilities of two or more related entities; the liabilities of the entities involved are then satisfied from the common pool of assets created by consolidation. See In re Augie/Restivo Baking Co., 860 F.2d at 518; Holywell Corp. v. Bank of New York, 59 B.R. 340, 347 (S.D. Fla.1986). In a Chapter 11 consolidation case, the creditors of the consolidated entities are combined for the purpose of voting on reorganization plans. In re Augie/Restivo Baking Co., 860 F.2d at 518. In addition, substantive consolidation eliminates the inter-corporate liabilities of the consolidated entities. Id; see also Holywell Corp., 59 B.R. at 347. Because the entities to be consolidated are likely to have different debt-to-asset ratios, consolidation “almost invariably redistributes wealth among the creditors of the various entities.” In re Auto-train, 810 F.2d at 276. Thus, courts have stated that substantive consolidation should be “used sparingly.” See In re Continental Vending Machine Corp., 517 F.2d at 1001 (quoting Chemical Bank New York Trust Co. v. Kheel, 369 F.2d 845, 847 (2d Cir.1966)). There is, however, a “modern” or “liberal” trend toward allowing substantive consolidation, which has its genesis in the increased judicial recognition of the widespread use of interrelated corporate structures by subsidiary corporations operating under a parent entity’s corporate umbrella for tax and business purposes. In re Murray Indus., 119 B.R. at 828-29. We have never addressed the issue of the standard which bankruptcy courts in this circuit should employ in making a determination of whether substantive consolidation is warranted. It is agreed that the basic criterion" }, { "docid": "10245902", "title": "", "text": "Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); and Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Sixth Circuit recognized the drastic change these cases bring to the analysis of summary judgment proceedings as a “salutary return to the original purpose of summary judgments.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir.1989). In the Sixth Circuit, the law is well settled, a material fact is “genuine” if a reasonable fact finder, in assessing the evidence, could possibly return a verdict for the non-moving party. See Bohm v. Forum Resorts, Inc., 762 F.Supp. 705, 707 (E.D.Mich.1991). Prior to granting Summary Judgment, this Court must scrutinize all the facts and conclude that in accordance with the applicable substantive law, that no reasonable fact finder could grant Summary Judgment for the non-moving party. The absence of a genuine issue of material fact dictates the granting of Summary Judgment. Substantive consolidation is the merger of two or more apparent entities into a single estate. The assets and liabilities of two or more entities are consolidated into a common fund of assets and a single body of creditors. In re Cooper, 147 B.R. 678, 682 (Bankr.D.N.J.1992). The purpose of the substantive consolidation is the equitable distribution of the debtor’s property among all its creditors. Union Savings Bank v. Augie/Restivo Baking Co., Ltd. (In re Augie/Restivo Baking Co., Ltd.), 860 F.2d 515, 518 (2d Cir.1988). The Bankruptcy Court has the jurisdiction to order a substantive consolidation pursuant to its equitable powers granted in section 105(a) of the Bankruptcy Code. Although the section does not specifically authorize the consolidation of the assets of a non-debtor with the estate of a debtor, Courts have recognized this as a valid application of § 105(a). Munford, Inc., d/b/a/ Majik Market v. Toc Retail, Inc. (In re Munford, Inc.), 115 B.R. 390 (Bankr.N.D.Ga.1990); See also, Auto-Train Corp. v. Midland-Ross Corp., 810 F.2d 270, 276 (D.C.Cir.1987); see generally, In re Walway Co., 69 B.R. 967 (Bankr.E.D.Mich.1987); United States v. Fairfield Construction" }, { "docid": "18739760", "title": "", "text": "are hopelessly scrambled, making disentanglement prohibitively expensive. Alternatively, there may be a showing that some creditors will inequitably receive a lesser share of the assets if consolidation is permitted. The inequity arises from these creditors’ reliance upon the separate credit and assets of one entity. Absent such reliance, these creditors would be estopped from asserting prejudice from the proposed consolidation. 2. The Eastgroup analysis From these precepts, two similar but not identical tests have evolved for assessing the propriety of substantive consolidation in the corporate context. See In re Augie/Restivo Baking Co., Ltd., 860 F.2d 515 (2d Cir.1988); Drabkin v. Midland-Ross Corp. (In re Auto-Train Corp.), 810 F.2d 270 (D.C.Cir.1987). This Circuit adopted the D.C. Circuit’s approach in Eastgroup Properties v. Southern Motel Assoc., Ltd., 935 F.2d 245 (11th Cir.1991). In Eastgroup Properties, this Circuit set forth the following analysis for governing substantive consolidation of corporate entities. Pursuant to the general equitable power conferred by section 105 of the Bankruptcy Code, a court may order substantive consolidation of corporate entities upon an evaluation of “whether ‘the economic prejudice of continued debtor separateness’ outweighs ‘the economic prejudice of consolidation.’ ” 935 F.2d at 249 (quoting In re Snider Bros., Inc., 18 B.R. 230, 234 (Bankr.D.Mass.1982)). A court accordingly must analyze whether “ ‘consolidation yields benefits offsetting the harm it inflicts on objecting parties.’ ” Id. (quoting Drabkin v. Midland-Ross Corp. (In re Auto-train Corp.), 810 F.2d 270, 276 (D.C.Cir.1987)). Under this analysis, the proponent of a motion for substantive consolidation must demonstrate: (1) there is substantial identity between the entities to be consolidated; and (2) consolidation is necessary to avoid some harm or to realize some benefit. 935 F.2d at 249. Upon this demonstration, a presumption arises “‘that creditors have not relied solely on the credit of one of the entities involved.’ ” Id. (quoting Matter of Lewellyn, 26 B.R. 246, 251-52 (Bankr.S.D.Iowa 1982)). Once the prima facie showing of substantial identity and harm or benefit is made, the burden shifts to an objecting creditor to show: (1) it has relied on the separate credit of one of the entities to" }, { "docid": "5048427", "title": "", "text": "Inc.), 954 F.2d 1 (1st Cir. 1992), the First Circuit noted: Consolidation is permitted only if it is first established that the related debtors’ assets and liabilities are-so intertwined that it would be impossible, or financially prohibitive, to disentangle their affairs. The trustee may request consolidation to conserve for creditors the monies which otherwise would be expended in prolonged efforts to disentangle the related debtors’ affairs. Nevertheless, the bankruptcy court must balance the potential benefits of consolidation against any potential harm to interested parties. In re Hemingway Transp., Inc., 954 F.2d at 11 n.15 (citations omitted). The First Circuit in Hemingway added that because “[substantive] consolidation can cause disproportionate prejudice among claimants required to share the debtors’ pooled assets, the party requesting substantive consolidation must satisfy the bankruptcy court that, on balance, consolidation will foster a net benefit among all holders of unsecured claims.” 954 F.2d at 11-12 (footnote omitted). While noting that the First Circuit specifically has approved substantive consolidation of multiple debtors, but not substantive consolidation involving non-debtors, the court in Logistics Information Sys., Inc., 432 B.R. at 11, observed that the test adopted by the First Circuit in Hemingway is similar to the test set forth in Drabkin v. Midland-Ross Corp. (In re Auto-Train Corp.), 810 F.2d 270, 276 (D.C. Cir. 1987), in which the District of Columbia Circuit considered the following factors, all of which must be satisfied: “(1) the movant must show a ‘substantial identity between the entities to be consolidated;’ (2) the movant must also demonstrate that ‘consolidation is necessary to avoid some harm or to realize some benefit;’ and (3) if a creditor will be prejudiced, the benefits of consolidation must heavily outweigh the harm.” Logistics Information Sys., Inc., 432 B.R. at 12. The Logistics court also observed that the bankruptcy court, while employing the Auto-Train test, also considered substantive consolidation with reference to the standard for piercing the coipo-rate veil. Id. (citing, inter alia, Aoki v. Atto Corp. (In re Aoki), 323 B.R. 803, 812 (1st Cir. B.A.P. 2005), in which the court applied the factors set forth in My Bread Baking" }, { "docid": "10245904", "title": "", "text": "Co. (In re Fairfield Construction Co.), 1991 Lexis 1395. The corporate veil does not exist between the entities and must be disregarded. A debtor must not be accorded the protections of a corporate entity if the debtor itself has ignored the integrity of the corporation and has operated independent of the protections guaranteed to a corporate entity. Although the Sixth Circuit has not pronounced a standard for the allowance of substantive consolidation of two or more entities into a single estate, we may look to other circuits for guidance. At least two general tests have been articulated in other circuits. See In re Standard Brands Paint Co., 154 B.R. 563, 567-69 (C.D.Cal.1993). The first test was articulated by the D.C. Circuit in In re Auto-Train Corp., Inc., 810 F.2d 270, 276 (D.C.Cir.1987). The Auto-Train standard relies upon a three part analysis: 1. The proponent must show a substantial identity between the entities to be consolidated, and 2. The proponent must show that consolidation is necessary to avoid some harm or to realize some benefit, and 3. If a creditor objects and demonstrates that it relied upon the separate credit of one of the entities and that it will be prejudiced by the consolidation, then the court may order consolidation only if it determines that the demonstrated benefits of consolidation “heavily” outweigh the harm. The first prong of the test involves an analysis similar to that used by the Courts to determine whether corporations are the alter egos of one another. The second and third prongs require a balancing of the equities or benefits and harms of the substantive consolidation. Standard Brands, 154 B.R. at 569. The second test was enunciated by the Second Circuit in Union Savings Bank v. Augie/Restivo Baking Co., Ltd. (In re Augie/Restivo Baking Co., Ltd.), supra. The Augie/Restivo test identifies two critical factors for the determination: “(i) whether creditors dealt with the entities as a single economic unit and ‘did not rely on their separate identity in extending credit’ (citations omitted) or (ii) whether the affairs of the debtors are so entangled that consolidation will benefit" }, { "docid": "4544098", "title": "", "text": "group of affiliated entities, ignores corporate formalities and shuffles money between them as if the entities are mere departments of a larger operation or little more than ‘corporate pockets.’ ” Seth D. Amera and Alan Kolod, Substantive Consolidation: Getting Back to Basics, 14 Am. BanKrInst. L.Rev. 1, 37 (2006). Resort to substantive consolidation should be used “sparingly.” Alexander v. Compton (In re Bonham), 229 F.3d 750, 767 (9th Cir.2000). Two tests have emerged throughout the circuits for determining whether substantive consolidation is appropriate. First: Before ordering consolidation, a court must conduct a searching inquiry to ensure that consolidation yields benefits offsetting the harm it inflicts on objecting parties.... The proponent must show not only a substantial identity between the entities to be consolidated, but also that consolidation is necessary to avoid some harm or to realize some benefit.... At this point, a creditor may object on the grounds that it relied on the separate credit of one of the entities and that it will be prejudiced by the consolidation.... If a creditor makes such a showing, the court may order consolidation only if it determines that the demonstrated benefits of consolidation “heavily” outweigh the harm. Drabkin v. Midland-Ross Corp. (In re Auto-Train Corp.), 810 F.2d 270, 276 (D.C.Cir.1987). Second, the court in In re Augie/Restivo Baking Co., 860 F.2d 515, 518 (2d Cir.1988) (citations omitted), focused on “two critical factors”: “(i) whether creditors dealt with the entities as a single economic unit and ‘did not rely on their separate identity in extending credit,’ or (ii) whether the affairs of the debtors are so entangled that consolidation will benefit all creditors.... ” The Committee has not stated a plausible claim that either of the Augie/Restivo Baking factors apply, while it is apparent that the Parishes and their creditors would suffer immense harm if they were forced to participate in this bankruptcy case. Moreover, the Court cannot ignore the outrageous expense and extreme delay that would no doubt accompany substantive consolidation in this case. The Debtor argues that the Court lacks authority to substantively consolidate the assets and liabilities of the Debtor" }, { "docid": "23550238", "title": "", "text": "purposes, of all of the Genesis Debtors as a single legal entity, and all of the Multicare Debtors as a single legal entity.' Following the issuance of New Common Stock in the reorganized Multicare to Multicare creditors, Genesis and Multicare will merge, with creditors of each case entitled to receive a proportionate share of the New Common Stock of the reorganized Genesis. The objectors contest the proposed merger of the reorganized Genesis and reorganized Multicare entities to effect “a de facto substantive consolidation,” which the objectors claim misallocates value from Genesis to Multicare, to the detriment of the Genesis creditors. The deemed consolidation of each set of entities is akin to substantive consolidation. “Substantive consolidation usually results in, inter alia, pooling the assets of, and claims against, the two entities; satisfying liabilities from the resultant common fund; eliminating inter-company claims; and combining the creditors of the two companies for purposes of voting on reorganization plans.” In re Augie/Restivo Baking Co., 860 F.2d 515, 518 (2d Cir.1988). “The sole purpose of substantive consolidation is to ensure the equitable treatment of all creditors.” Id. See also In re Cooper, 147 B.R. 678 (Bankr.D.N.J.1992) (joint administration benefits case administration without affecting the creditors while substantial consolidation ensures the equitable treatment of the creditors). “Substantive consolidation should be considered with extreme caution and granted only in extraordinary situations.” In re United Stairs Corp., 176 B.R. 359, 368-69 (Bankr.D.N.J.1995). The D.C. Circuit has developed a three-part test under which the moving party must show: (1) a substantial identity between the entities to be consolidated; (2) that consolidation is necessary to avoid harm or to achieve some benefit; and (3) in the event that the creditor shows harm, that the benefits of consolidation “heavily” outweigh the harm. In re Auto-Train Corp., 810 F.2d 270, 276 (D.C.Cir.1987). The “first part of this analysis mirrors that used by courts to determine whether corporations are alter egos of one another. The second and third parts of the analysis require balancing the benefits and harms of substantive consolidation.” In re New Center Hospital, 187 B.R. 560, 568 (E.D.Mich.1995). This approach" }, { "docid": "10520162", "title": "", "text": "Inc.), Adv. P. No. 04-1188 Slip op. at *4, 2009 WL 722023 (Bankr.D.Mass. March 18, 2009). . The First Circuit in Hemingway added: “consolidation should not be permitted — es pecially if holders of unsecured claims reasonably relied on the fact that the related debtors were distinct entities at the time credit was extended.” Id. at n. 16 (citations omitted). . In In re Auto-Train Corp., Inc., the Court of Appeals for the District of Columbia Circuit adopted a three-part test for determining whether to grant a request for substantive consolidation: 1. Is there a substantial identity between the entities to be consolidated? 2. Is consolidation necessary to avoid some harm or to realize some benefit? 3. If a creditor objects and demonstrates that it relied on the separate credit of one of the entities and that it will be prejudiced by the consolidation, will the demonstrated benefits of consolidation heavily outweigh the harm to the objecting creditor? 2 Hon. Joan N. Feeney, Hon. Michael G. Williamson, and Michael J. Stepan, Esq., Bankruptcy Law Manual § 11:44 (5 th ed.2014). The court in Auto-Train noted that when courts authorize substantive consolidation they do so \"typically to avoid the expense or difficulty of sorting out the debtor's records to determine the separate assets and liabilities of each affiliated entity.” 810 F.2d at 276. The court added: \"[B]ecause every entity is likely to have a different debt-to-asset ratio, consolidation almost invariably redistributes wealth among the creditors of the various entities. This problem is compounded by the fact that liabilities of consolidated entities inter se are extinguished by the consolidation.” Id. (citations omitted). The Second Circuit in In re Augie/Restivo Baking Co., Ltd., 860 F.2d at 518, adopted a two-part test, focusing first on reliance: 1. Have creditors dealt with the entities as a single economic unit rather than relying on their separate identities in extending credit? 2. Are the affairs of the debtors so entangled that consolidation will benefit all creditors? 2 Feeney, et al., supra. Finally, the Third Circuit in In re Owens Coming, limited the availability of substantive consolidation requiring" }, { "docid": "10788686", "title": "", "text": "approaches have been adopted to determine when substantive consolidation is warranted. One test, adopted by opinions in the Second and Ninth Circuits, focuses on “whether creditors dealt with the entities as a single economic unit and did not rely on their separate identity in extending credit” or “whether the affairs of the debtors are so entangled that consolidation will benefit all creditors.” In re Augie/Restivo Baking Co., 860 F.2d at 518; accord In re Bonham, 229 F.3d 750, 766 (9th Cir.2000). Although the presence of either factor is said to be a sufficient reason to order substantive consolidation, consolidation based on entanglement of the debtors’ affairs “is justified only where ‘the time and expense necessary even to attempt to unscramble them [is] so substantial as to threaten the realization of any net assets for all the creditors’ or where no accurate identification and allocation of assets is possible.” In re Bonham, 229 F.3d at 766 (alteration in original) (quoting In re Augie/Restivo Baking Co., 860 F.2d at 519). An alternative test, adopted by opinions in the District of Columbia and Eleventh Circuits, focuses on whether “ ‘the economic prejudice of continued debtor separateness’ outweighs ‘the economic prejudice of consolidation.’ ” Eastgroup Props., 935 F.2d at 249 (quoting In re Snider Bros., 18 B.R. 230, 234 (Bankr.D.Mass.1982)); accord In re Auto-Train Corp., 810 F.2d 270, 276 (D.C.Cir.1987). First, “the proponent of substantive consolidation must show that (1) there is substantial identity between the entities to be consolidated; and (2) consolidation is necessary to avoid some harm or to realize some benefit.” Eastgroup Props., 935 F.2d at 249 (citing In re Auto-Train Corp., 810 F.2d at 276). If the proponent makes such a showing, then an objecting creditor must show that “(1) it has relied on the separate credit of one of the entities to be consolidated; and (2) it will be prejudiced by substantive consolidation.” Id. (citing In re Auto-Train Corp., 810 F.2d at 276). Factors possibly relevant to whether there is a substantial identity of interests between the debtors would include: (1) The presence or absence of consolidated financial statements." }, { "docid": "4544099", "title": "", "text": "showing, the court may order consolidation only if it determines that the demonstrated benefits of consolidation “heavily” outweigh the harm. Drabkin v. Midland-Ross Corp. (In re Auto-Train Corp.), 810 F.2d 270, 276 (D.C.Cir.1987). Second, the court in In re Augie/Restivo Baking Co., 860 F.2d 515, 518 (2d Cir.1988) (citations omitted), focused on “two critical factors”: “(i) whether creditors dealt with the entities as a single economic unit and ‘did not rely on their separate identity in extending credit,’ or (ii) whether the affairs of the debtors are so entangled that consolidation will benefit all creditors.... ” The Committee has not stated a plausible claim that either of the Augie/Restivo Baking factors apply, while it is apparent that the Parishes and their creditors would suffer immense harm if they were forced to participate in this bankruptcy case. Moreover, the Court cannot ignore the outrageous expense and extreme delay that would no doubt accompany substantive consolidation in this case. The Debtor argues that the Court lacks authority to substantively consolidate the assets and liabilities of the Debtor with the non-debtor Parishes. Even assuming, ar-guendo, that the Court has the authority, this is not a case for the extraordinary remedy of substantive consolidation of a debtor with non-debtor entities. The Committee failed to show facts suggesting that consolidation of the Debtor with 210 non-debtor entities would offset the significant harm caused to these non-debtor entities; it has not stated a plausible claim of a substantial identity of the parties to be consolidated; it has not demonstrated a sufficient entanglement of affairs warranting consolidation; and it has not plausibly stated that creditors did not rely on the separate identity between the Debtor and the Parishes in extending credit. Given the prejudice to the non-debtor Parishes and their creditors that would result from substantive consolidation, it would be wholly improper in this case to consolidate the Debtor with the non-debtor Parishes. The Committee is not granted derivative standing to pursue a substantive consolidation claim. Conclusion For these reasons, the Committee’s Parish Assets Motion should be denied. A separate Order will be entered consistent with this" }, { "docid": "8949742", "title": "", "text": "bankruptcy court erred in weighing the equities when it ordered substantive consolidation. They argue that its apparent rationale for consolidation — that, absent consolidation, SMA’s equity holders might receive a distribution after all claims were paid, while GPH’s unsecured creditors (who might receive a distribution if the estates were consolidated) would not receive anything — is disproved by the mathematics of the cases: that, regardless of consolidation, GPH’s unsecured creditors will receive no distribution and SMA’s equity holders will receive nothing. Appellants also argue that the bankruptcy court gave inadequate weight to the fact that consolidation would prejudice them because their unsecured claims would not be paid if the estates are consolidated. The trustee, on the other hand, contends that the bankruptcy court properly found that he had established a prima facie case for consolidation and that, because the appellants failed to present evidence that they had relied on SMA’s separate credit, the bankruptcy court’s order of substantive consolidation, which was affirmed by the district court, should be affirmed by this court. A. The Legal Framework for Substantive Consolidation While not specifically authorized by the bankruptcy code, bankruptcy courts have the power to order substantive consolidation by virtue of their general equitable powers. See, e.g., Union Savings Bank v. Augie/Restivo Baking Co. (In re Augie/Restivo Baking Co.), 860 F.2d 515, 518 & n. 1 (2d Cir.1988); Drabkin v. Midland-Ross Corp. (In re Auto-train Corp.), 810 F.2d 270, 276 (D.C.Cir.1987). The purpose of substantive consolidation is “to insure the equitable treatment of all creditors.” In re Murray Indus., 119 B.R. 820, 830 (Bankr.M.D.Fla.1990). It involves the pooling of the assets and liabilities of two or more related entities; the liabilities of the entities involved are then satisfied from the common pool of assets created by consolidation. See In re Augie/Restivo Baking Co., 860 F.2d at 518; Holywell Corp. v. Bank of New York, 59 B.R. 340, 347 (S.D. Fla.1986). In a Chapter 11 consolidation case, the creditors of the consolidated entities are combined for the purpose of voting on reorganization plans. In re Augie/Restivo Baking Co., 860 F.2d at 518. In" }, { "docid": "15911107", "title": "", "text": "potential preference holder may challenge the nunc pro tunc entry of the consolidation order by establishing that it relied on the separate credit of one of the entities to be consolidated and that it will be harmed by the shift in filing dates. If a potential preference holder meets this burden, the court must then determine whether the benefits of nunc pro tunc outweigh its detriments. Id. The D.C. Circuit nonetheless applied this rule to reverse the nunc pro tunc feature of the bankruptcy court’s order of substantive consolidation because the bankruptcy court had given “little or no weight” to the objecting creditor’s reliance on the separate credit of the consolidated entity. Id.; but see In re Kroh, 117 B.R. at 502 (affirming nunc pro tunc substantive consolidation where Auto-Train showing made). While we ratify nunc pro tunc consolidation, we decline to adopt Auto-Train’s approach to determining whether nunc pro tunc substantive consolidation should be ordered for many of the same reasons the Sixth Circuit declined to do so in Baker. In Baker, the Sixth Circuit allowed for the nunc pro tunc consolidation of two debtor estates. See 974 F.2d at 720. The court, however, noted that the Auto-Train test so closely paralleled the inquiry conducted under Auto-Train to order substantive consolidation that it would add “needless confusion to allow relitigation of this question in the guise of litigation over the filing date, particularly when the outcomes will almost always be the same.” Id. at 721; see also In re Kroh, 117 B.R. at 502. Instead, the Sixth Circuit adopted the approach set forth in Matter of Evans Temple Church of God in Christ & Community Ctr., Inc., 55 B.R. 976, 981-82 (Bankr.N.D.Ohio 1986). In Matter of Evans, the bankruptcy court noted that implicit in any order of substantive consolidation is the determination “that the assets and liabilities of one debtor are substantially the same assets and liabilities of the second debtor.” 55 B.R. at 982. The court went on to explain: If the reasons for substantively consolidating two cases filed under the Code is to protect the unsecured creditors" }, { "docid": "18739759", "title": "", "text": "of reorganization which permitted consolidation of the unsecured creditors’ claims but denied consolidation of the secured creditors’ claims. Reasoning that the inter-entity transfers that had prejudiced the claims of many unsecured creditors had not implicated or diminished the value of lien property, the court concluded that consolidation of secured claims was unnecessary because the class had not been harmed. 517 F.2d at 1001. In emphasizing the showing of harm required for consolidation, the court noted that “the inequities it [consolidation] involves must be heavily outweighed by practical considerations such as the accounting difficulties (and expense) which may occur....” Id. Thus, creditors must make a strong showing that harm will occur absent consolidation. In sum, this line of decisions suggested a two-fold inquiry for ordering substantive consolidation. First, substantial identity of the entities must be demonstrated by the absence of corporate formalities or by commingling of assets. Second, there must be a demonstration that harm to the creditors will result without consolidation. This heavy showing may be made by demonstrating that the affairs of the entities are hopelessly scrambled, making disentanglement prohibitively expensive. Alternatively, there may be a showing that some creditors will inequitably receive a lesser share of the assets if consolidation is permitted. The inequity arises from these creditors’ reliance upon the separate credit and assets of one entity. Absent such reliance, these creditors would be estopped from asserting prejudice from the proposed consolidation. 2. The Eastgroup analysis From these precepts, two similar but not identical tests have evolved for assessing the propriety of substantive consolidation in the corporate context. See In re Augie/Restivo Baking Co., Ltd., 860 F.2d 515 (2d Cir.1988); Drabkin v. Midland-Ross Corp. (In re Auto-Train Corp.), 810 F.2d 270 (D.C.Cir.1987). This Circuit adopted the D.C. Circuit’s approach in Eastgroup Properties v. Southern Motel Assoc., Ltd., 935 F.2d 245 (11th Cir.1991). In Eastgroup Properties, this Circuit set forth the following analysis for governing substantive consolidation of corporate entities. Pursuant to the general equitable power conferred by section 105 of the Bankruptcy Code, a court may order substantive consolidation of corporate entities upon an evaluation of “whether" }, { "docid": "15911092", "title": "", "text": "Auto-Train, the D.C. Circuit articulated a three-part burden-shifting test as part of “a searching inquiry to ensure that consolidation yields benefits offsetting the harm it inflicts to objecting parties.” 810 F.2d at 276. Under this test, a proponent of substantive consolidation must first show that “(1) there is a substantial identity between the entities to be consolidated; and (2) consolidation is necessary to avoid some harm or to realize some benefit.” Eastgroup, 935 F.2d at 249 (adopting Auto-Train test). When this prima facie showing is made, “a presumption arises ‘that creditors have not relied solely on the credit of one of the entities involved.’ ” Id. (quoting Matter of G.V. Lewellyn & Co., Inc., 26 B.R. 246, 251-52 (Bankr.S.D.Iowa1982)). The burden then shifts to an objecting creditor to show that “(1) it has relied on the separate credit of one of the entities to be consolidated; and (2) it will be prejudiced by substantive consolidation.” Id. (citing In re Auto-Train, 810 F.2d at 276). Finally, if the objecting creditor makes the required showing, “the court may order consolidation only if it determines that the demonstrated benefits of consolidation ‘heavily’ outweigh the harm.” In re Auto-Train, 810 F.2d at 276. Each element of the Auto-Train test must be satisfied to properly order substantive consolidation. The Second Circuit has applied an independent test which requires the consideration of two factors: “(1) whether creditors dealt with the entities as a single economic unit and did not rely on then-separate identity in extending credit; or (2) whether the affairs of the debtor are so entangled that consolidation will benefit all creditors.” In re Reider, 31 F.3d at 1108 (citing In re Augie/Restivo, 860 F.2d at 518); see also Colonial Realty, 966 F.2d at 61. The presence of either factor is a sufficient basis to order substantive consolidation. See id. The first factor, reliance on the separate credit of the entity, is based on the consideration that lenders “structure their loans according to their expectations regarding th[e] borrower and do not anticipate either having the assets of a more sound company available in the case" }, { "docid": "15911108", "title": "", "text": "Circuit allowed for the nunc pro tunc consolidation of two debtor estates. See 974 F.2d at 720. The court, however, noted that the Auto-Train test so closely paralleled the inquiry conducted under Auto-Train to order substantive consolidation that it would add “needless confusion to allow relitigation of this question in the guise of litigation over the filing date, particularly when the outcomes will almost always be the same.” Id. at 721; see also In re Kroh, 117 B.R. at 502. Instead, the Sixth Circuit adopted the approach set forth in Matter of Evans Temple Church of God in Christ & Community Ctr., Inc., 55 B.R. 976, 981-82 (Bankr.N.D.Ohio 1986). In Matter of Evans, the bankruptcy court noted that implicit in any order of substantive consolidation is the determination “that the assets and liabilities of one debtor are substantially the same assets and liabilities of the second debtor.” 55 B.R. at 982. The court went on to explain: If the reasons for substantively consolidating two cases filed under the Code is to protect the unsecured creditors of both debtors where the assets and liabilities of the debtors are so intermingled as to make them substantially the same, and if the purpose of the preference provisions is to assure equality of distribution among all creditors, then it logically follows that where two cases are substantively consolidated upon a determination by the Court that the assets and liabilities of each debtor are not clearly separable, the preference provisions require us to treat the creditors of both debtors in substantially the same manner. In order for us to do so, we must assign a like filing date to both Debtors for purposes of the preference provisions. Id. The Baker court similarly concluded that “[t]he order of consolidation rests on the foundation that the assets of all of the consolidated parties are substantially the same,” and that the earliest filing date is the controlling date. In re Baker, 974 F.2d at 721; but see In re Tureaud, 59 B.R. at 977-78 (ordering substantive consolidation as of date of filing of application for substantive consolidation, and" }, { "docid": "18739761", "title": "", "text": "‘the economic prejudice of continued debtor separateness’ outweighs ‘the economic prejudice of consolidation.’ ” 935 F.2d at 249 (quoting In re Snider Bros., Inc., 18 B.R. 230, 234 (Bankr.D.Mass.1982)). A court accordingly must analyze whether “ ‘consolidation yields benefits offsetting the harm it inflicts on objecting parties.’ ” Id. (quoting Drabkin v. Midland-Ross Corp. (In re Auto-train Corp.), 810 F.2d 270, 276 (D.C.Cir.1987)). Under this analysis, the proponent of a motion for substantive consolidation must demonstrate: (1) there is substantial identity between the entities to be consolidated; and (2) consolidation is necessary to avoid some harm or to realize some benefit. 935 F.2d at 249. Upon this demonstration, a presumption arises “‘that creditors have not relied solely on the credit of one of the entities involved.’ ” Id. (quoting Matter of Lewellyn, 26 B.R. 246, 251-52 (Bankr.S.D.Iowa 1982)). Once the prima facie showing of substantial identity and harm or benefit is made, the burden shifts to an objecting creditor to show: (1) it has relied on the separate credit of one of the entities to be consolidated; and (2) it will be prejudiced by substantive consolidation. 935 F.2d at 249. The Second Circuit has adopted an alternative test in In re Augie/Restivo Co., Ltd., 860 F.2d 515 (2d Cir.1988). The inquiry focuses on two factors: (1) whether creditors dealt with the entities as a single economic unit and did not rely on their separate identity in extending credit; or (2) whether the affairs of the debtors are so entangled that consolidation will benefit all creditors. 860 F.2d at 518. The presence of either factor justifies substantive consolidation. The Second Circuit recently reaffirmed this test in the 1992 case of FDIC v. Colonial Realty Co., 966 F.2d 57, 61 (2d Cir.1992). 3. Applicability of Eastgroup to the spousal context Few decisions have addressed or even discussed substantive consolidation in the context of debtor spouses. See In re Chan, 113 B.R. 427 (D.N.D.Ill.1990); In re Knobel, 167 B.R. 436 (Bankr.W.D.Tex.1994); In re Steury, 94 B.R. 553 (Bankr.N.D.Ind.1988); In re Birch, 72 B.R. 103 (Bankr.D.N.H.1987); In re Scholz, 57 B.R. 259 (Bankr.N.D.Ohio 1986);" }, { "docid": "7136631", "title": "", "text": "the corporate veil, “alter ego,” and equitable subordination). Pre- (and post-) petition liens against particular assets are preserved, but otherwise the resultant pool of assets is subject to the resultant pool of unsecured claims. In re Augie/Restivo Baking Co., Ltd., 860 F.2d at 518. See also In re Owens Corning, 419 F.3d at 206 (substantive consolidation “brings all the assets of a group of entities into a single survivor,” i.e., the consolidated estate, and “merges liabilities as well”). Inter-company liabilities among the debtors are extinguished. Eastgroup Properties, 935 F.2d at 248; In re Auto-Train Corp., Inc., 810 F.2d at 276. That is the outcome, for the administration of the bankruptcy cases and the one resulting estate, going forward. The effects, however, are distinct. They, too, are recognized in pointed fashion by most of the circuits. Put most succinctly, substantive consolidation “almost invariably redistributes wealth among the creditors of the various entities.” In re Auto-Train Corp., Inc., 810 F.2d at 276. See also Eastgroup Properties, 935 F.2d at 248. It poses the possibility of “forcing creditors of one debtor to share on a parity with creditors of a less solvent debtor.” In re Augie/Restivo Baking Co., Ltd., 860 F.2d at 518. As observed by the circuit with the most jaundiced view toward the remedy: The bad news for certain creditors is that, instead of looking to assets of the subsidiary with whom they dealt, they now must, share those assets with all creditors of all consolidated entities, raising the specter for some of a significant distribution diminution. In re Owens Corning, 419 F.3d at 206. The judicial reaction to the potential effects is the most salient variable among the published opinions. It is voiced through the forcefulness with which the appellate courts endorse or reject a bankruptcy court’s use of the remedy, and the ways they identify and delimit the circumstances in which it is properly applied. Most of the circuits caution that substantive consolidation is to be used “sparingly.” E.g., In re Owens Corning, 419 F.3d at 209; In re Augie/Restivo Baking Co., Ltd., 860 F.2d at 518. Most also" }, { "docid": "3876114", "title": "", "text": "omitted). The Sixth Circuit has described substantive consolidation in this way: “Substantive consolidation is employed in cases where the interrelationships of the debtors are hopelessly obscured and the time and expense necessary to attempt to unscramble them is so substantial as to threaten the realization of any net assets for all of the creditors. In any consolidated case, there is implicit in the Court’s decision to consolidate the conclusion that the practical necessity of consolidation to protect the possible realization of any recovery for the majority of the unsecured creditors far outweighs the prospective harm to any particular creditor. Thus, when a case is substantively consolidated, the Order for consolidation is, in effect, a determination by the Court that consolidation is warranted by the circumstances of the cases and that it is in the best interest of unsecured creditors to join the assets and liabilities of two debtors. It is, in effect, a statement by the Court that the assets and liabilities of one debtor are substantially the same assets and liabilities of the second debt- or....” First National Bank of Barnesville v. Rafoth (In re Baker & Getty Fin. Servs., Inc.), 974 F.2d 712, 720 (6th Cir.1992)(quoting Evans Temple Church of God in Christ and Cmty. Ctr., Inc. v. Carnegie Body Co. (In re Evans Temple Church of God in Christ and Cmty. Ctr., Inc.), 55 B.R. 976, 981-82 (N.D.Ohio 1986)). Defendants Winget, Venture Nevada, Pompo, VIR, and Modas seek dismissal of this Count, arguing that the Court lacks authority to order substantive consolidation. Defendants also argue that even if the Court has authority to order substantive consolidation, it still must dismiss Count VII because “Plaintiff improperly pled the remedy [substantive consolidation] as an affirmative count” and also because Gold “has no standing to raise substantive consolidation on behalf of the Debtors.” For the reasons stated below, the Court concludes that (1) it does have authority to order substantive consolidation; (2) the trustee has standing to seek substantive consolidation; and (3) substantive consolidation is properly pled as a separate count in the complaint. The Court will therefore deny the" }, { "docid": "10245903", "title": "", "text": "apparent entities into a single estate. The assets and liabilities of two or more entities are consolidated into a common fund of assets and a single body of creditors. In re Cooper, 147 B.R. 678, 682 (Bankr.D.N.J.1992). The purpose of the substantive consolidation is the equitable distribution of the debtor’s property among all its creditors. Union Savings Bank v. Augie/Restivo Baking Co., Ltd. (In re Augie/Restivo Baking Co., Ltd.), 860 F.2d 515, 518 (2d Cir.1988). The Bankruptcy Court has the jurisdiction to order a substantive consolidation pursuant to its equitable powers granted in section 105(a) of the Bankruptcy Code. Although the section does not specifically authorize the consolidation of the assets of a non-debtor with the estate of a debtor, Courts have recognized this as a valid application of § 105(a). Munford, Inc., d/b/a/ Majik Market v. Toc Retail, Inc. (In re Munford, Inc.), 115 B.R. 390 (Bankr.N.D.Ga.1990); See also, Auto-Train Corp. v. Midland-Ross Corp., 810 F.2d 270, 276 (D.C.Cir.1987); see generally, In re Walway Co., 69 B.R. 967 (Bankr.E.D.Mich.1987); United States v. Fairfield Construction Co. (In re Fairfield Construction Co.), 1991 Lexis 1395. The corporate veil does not exist between the entities and must be disregarded. A debtor must not be accorded the protections of a corporate entity if the debtor itself has ignored the integrity of the corporation and has operated independent of the protections guaranteed to a corporate entity. Although the Sixth Circuit has not pronounced a standard for the allowance of substantive consolidation of two or more entities into a single estate, we may look to other circuits for guidance. At least two general tests have been articulated in other circuits. See In re Standard Brands Paint Co., 154 B.R. 563, 567-69 (C.D.Cal.1993). The first test was articulated by the D.C. Circuit in In re Auto-Train Corp., Inc., 810 F.2d 270, 276 (D.C.Cir.1987). The Auto-Train standard relies upon a three part analysis: 1. The proponent must show a substantial identity between the entities to be consolidated, and 2. The proponent must show that consolidation is necessary to avoid some harm or to realize some benefit, and" }, { "docid": "3876139", "title": "", "text": "of separate entities into one action so that the assets and liabilities of both parties may be aggregated in order to effect a more equitable distribution of property among creditors.”) Some thirteen years after Butner, the Sixth Circuit explained why substantive consolidation is a remedy that sometimes must be employed by a bankruptcy court to further the federal interest of providing a fair distribution to a debtor’s creditors: “Substantive consolidation is employed in cases where the interrelationships of the debtors are hopelessly obscured and the time and expense necessary to attempt to unscramble them is so substantial as to threaten the realization of any net assets for all of the creditors. In any consolidated case, there is implicit in the Court’s decision to consolidate the conclusion that the practical necessity of consolidation to protect the possible realization of any recovery for the majority of the unsecured creditors far outweighs the prospective harm to any particular creditor. Thus, when a case is substantively consolidated, the Order for consolidation is, in effect, a determination by the Court that consolidation is warranted by the circumstances of the cases and that it is in the best interest of unsecured creditors to join the assets and liabilities of two debtors. It is, in effect, a statement by the Court that the assets and liabilities of one debtor are substantially the same assets and liabilities of the second debt- or....” First National Bank of Bamesville v. Rafoth (In re Baker & Getty Fin. Servs., Inc.), 974 F.2d 712, 720 (6th Cir.1992)(quoting Evans Temple Church of God in Christ and Cmty. Ctr., Inc. v. Carnegie Body Co. (In re Evans Temple Church of God in Christ and Cmty. Ctr., Inc.,) 55 B.R. 976, 981-81 (N.D.Ohio 1986)). Defendants have not cited any case, and the Court is not aware of any case, holding that Butner implicitly overruled Sampsell, or that Butner eliminated the bankruptcy court’s power to order substantive consolidation. And after Butner, the courts have continued to view substantive consolidation as a remedy that a bankruptcy court can use to bring property into a debtor’s bankruptcy estate," } ]

[ { "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": "15333830", "title": "", "text": "probable cause for the appellant’s arrest. The appellant protests that he was arrested primarily because his companion, He, was found in possession of unauthorized credit cards. While it is true that a person’s “mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause,” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), there is a considerable difference between mere propinquity and culpable propinquity. This is a case in which culpable propinquity logically could be inferred. We rehearse the sequence of events. The store manager had reported that two Asian men had entered his establishment in connection with an attempted credit card fraud. The police discovered the appellant in the immediate vicinity of the failed attempt, driving a van that contained a large quantity of expensive, newly acquired merchandise. The man riding with him was found to be in possession of unauthorized credit cards (for which he was arrested). To cinch matters, the two men were not merely near one another but were traveling companions who satisfied the store manager’s descriptions and who — by the appellant’s own prearrest admission — ¡jointly possessed the newly acquired merchandise. Under those circumstances, it strains credulity to think that the appellant was unaware that such a large quantity of goods had been obtained through fraud. Cf. United States v. Ortiz, 966 F.2d 707, 712 (1st Cir.1992) (noting that “criminals rarely welcome innocent persons as witnesses to serious crimes and rarely seek to perpetrate felonies before larger-than-necessary audiences”). The short of it is that, as the investigation progressed, the arresting officer developed increasingly good reason to believe that substantially more than a momentary, random, or innocent association existed between the appellant and He (and, thus, between the appellant and the suspected criminal activity). Consequently, we uphold the district court’s finding that reasonable suspicion ripened into probable cause, thereby supplying a sound constitutional basis for the ensuing arrest. See Velez-Saldana, 252 F.3d at 53; United States v. Martinez-Molina, 64 F.3d 719, 727-30 (1st Cir.1995). 3. Post-Arrest Actions. Finally, the appellant suggests that the" }, { "docid": "15333829", "title": "", "text": "appellant next challenges the legality of his arrest. His challenge depends upon the existence vel non of probable cause. Probable cause is a fluid concept. Its existence must be evaluated under the entirety of the circumstances. Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Figueroa, 818 F.2d 1020, 1024 (1st Cir.1987). Probable cause to arrest does not demand either the same quantum of proof or the same degree of certitude as a conviction. Probable cause does, however, require reasonably trustworthy information such as would lead a prudent person to believe that the suspect likely had committed or was committing a criminal offense. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); United States v. Winchenbach, 197 F.3d 548, 555 (1st Cir.1999). Probable cause often accretes gradually as an investigation progresses. So it was here: we agree with the district court that the circumstances giving rise to reasonable suspicion (recounted above) and the developments that unfolded during the Terry stop furnished probable cause for the appellant’s arrest. The appellant protests that he was arrested primarily because his companion, He, was found in possession of unauthorized credit cards. While it is true that a person’s “mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause,” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), there is a considerable difference between mere propinquity and culpable propinquity. This is a case in which culpable propinquity logically could be inferred. We rehearse the sequence of events. The store manager had reported that two Asian men had entered his establishment in connection with an attempted credit card fraud. The police discovered the appellant in the immediate vicinity of the failed attempt, driving a van that contained a large quantity of expensive, newly acquired merchandise. The man riding with him was found to be in possession of unauthorized credit cards (for which he was arrested). To cinch matters, the two men were not merely near one another but were" }, { "docid": "23665477", "title": "", "text": "1833, 64 L.Ed.2d 260 (1980). There can be no doubt that Patrick was arrested when he was handcuffed to a chair. This was not a mere stop. IV. PROBABLE CAUSE To justify an arrest, even at the border, probable cause to believe the suspect has committed a crime is required. See Florida v. Royer, 460 U.S. 491, 499, 103 S.Ct. 1319, 1324-25, 75 L.Ed.2d 229 (1983). That probable cause must be present at the moment of arrest. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225-26, 13 L.Ed.2d 142 (1964). An arrest is not valid if it is executed to afford the agents an opportunity to amass facts sufficient to constitute probable cause. United States v. Martinez, 465 F.2d 79, 82 (2d Cir.1972) (citations omitted). While “good hunches are the foundation of good police work,” they do not provide sufficient grounds to arrest. United States v. Chadwick, 532 F.2d 773, 785 (1st Cir.1976), aff'd on other grounds, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). The courts have discouraged “intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches.... ” Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880-81, 20 L.Ed.2d 889 (1968). Even assuming, ar-guendo, that, as in Chadwick, the circumstances of the case at bar may have led the agents to suspect wrongdoing, that suspicion alone does not amount to probable cause. Neither does association by physical proximity to a criminal constitute probable cause to arrest. Siron v. New York, 392 U.S. 40, 62-64, 88 S.Ct. 1889, 1902-03, 20 L.Ed.2d 917 (1968). See also Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979) (propinquity to others independently suspected of criminal activity insufficient to provide probable cause for search or arrest); United States v. Jit Sun Loo, 478 F.2d 401, 403 (9th Cir.1973) (mere physical proximity to others previously arrested for drug importation is not sufficient probable cause to justify arrest). Cf. United States v. Welker, 689 F.2d 167, 169 (10th Cir.1982) (mere suspicion of criminal activity, based in part on suspect’s race, does" }, { "docid": "8067702", "title": "", "text": "the circumstances; he merely hesitated and took a step or two backwards (but did not turn around) when confronted at the door by an armed man in plain clothes from inside his cousin’s house. The government’s emphasis that appellant’s “hesitancy” created individualized suspicion falls far short of those cases dealing with flight, furtive gestures, or otherwise inexplicable sudden movements toward a pocket or other place where a weapon could be concealed. Thus, appellant’s action in stepping backwards did not justify the search. The question remains whether the evidence of criminal activity within the house being searched justified the police in searching anyone who approached the premises. The warrant is of no help to the government in its attempt to justify the search. The warrant only gave the police authority to be on the premises, not to search anyone that came to the door during the time of the search. Because Sgt. Moss’ actions towards appellant were taken without an arrest warrant, the information to be considered is that available to the officer at the time of the stop and frisk. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Sgt. Moss had no factual data about appellant that would have given rise to a probability of illegal activity. “[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (warrant to search bar and bartender cannot normally be construed to authorize a search of each individual at the club). An investigatory search will be found constitutionally permissible only when supported by reasonable suspicion directed to the person to be searched, and “[this] requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be.” Id. at 89-91, 100 S.Ct. at 341-42. Beyond dispute, the police may take appropriate action to ensure their own protection when officers are" }, { "docid": "10423763", "title": "", "text": "the government “need not present the quantum of proof necessary to convict.” Id. at 105 (quoting Uricoechea-Casallas, 946 F.2d at 165). 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. Torres-Maldonado, 14 F.3d at 105; see also Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Of course, probable cause must exist with respect to each person arrested, and “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979) (citing Sibron v. New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902-03, 20 L.Ed.2d 917 (1968)); see also United States v. Diallo, 29 F.3d 23, 25 (1st Cir.1994). Rather, “some additional circumstances from which it is reasonable to infer participation in criminal enterprise must be shown.” United States v. Burrell, 963 F.2d 976, 986 (7th Cir.), cert. denied, — U.S.-, 113 S.Ct. 357, 121 L.Ed.2d 270 (1992) (quoting United States v. Hillison, 733 F.2d 692, 697 (9th Cir.1984)). In assessing the significance of a defendant’s association to others independently suspected of criminal activity, the Hillison court looked to whether the known criminal activity was contemporaneous with the association and whether the circumstances suggest that the criminal activity could have been carried on without the knowledge of all persons present. See Hillison, 733 F.2d at 697 (citations omitted). Other courts have focused on the nature of the place in which the arrest occurred and whether the individual himself was behaving suspiciously or was merely “tainted” by another. See United States v. Tehrani, 49 F.3d 54, 59 (2d Cir.1995). A survey" }, { "docid": "10423762", "title": "", "text": "transpired during an incident by virtue of its ability to see and hear the witnesses who have firsthand knowledge of the events. United States v. Zapata, 18 F.3d 971, 975 (1st Cir.1994). Questions of law, however, are subject to de novo review. Id. B. Applicable Law Law enforcement officers may effect warrantless arrests provided that they have probable cause to believe that the suspect has committed or is committing a crime. United States v. Watson, 423 U.S. 411, 416-18, 96 S.Ct. 820, 824-25, 46 L.Ed.2d 598 (1976); Gerstein v. Pugh, 420 U.S. 103, 113—14, 95 S.Ct. 854, 862-63, 43 L.Ed.2d 54 (1975). “[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts,” Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983), and as such “must be evaluated in light of the totality of circumstances.” United States v. Torres-Maldonado, 14 F.3d 95, 105 (1st Cir.1994) (quoting United States v. Uricoechea-Casal-las, 946 F.2d 162, 165 (1st Cir.1991)). Moreover, in order to establish probable cause, the government “need not present the quantum of proof necessary to convict.” Id. at 105 (quoting Uricoechea-Casallas, 946 F.2d at 165). 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. Torres-Maldonado, 14 F.3d at 105; see also Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Of course, probable cause must exist with respect to each person arrested, and “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979) (citing Sibron v. New York," }, { "docid": "15333828", "title": "", "text": "a vehicle’s path do not, as a matter of law, transmogrify an otherwise lawful Terry stop into a de facto arrest. See, e.g., United States v. Trueber, 238 F.3d 79, 94 (1st Cir.2001); Quinn, 815 F.2d at 156-57. In this instance, the totality of the circumstances adequately supports the district court’s finding that the stop lacked the coercive element necessary to convert it into something more draconian. That ends this aspect of the matter. The district court could, perhaps, have found the facts differently — but it is not our proper province either to speculate about whether the police officers’ methods might possibly have been more genteel or to second-guess the district court’s assessment of the evidence. See United States v. Sharpe, 470 U.S. 675, 686-87, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). Mindful of these constraints, we uphold the lower court’s binary determination that reasonable suspicion adequately justified the investigatory stop from its inception and that the ensuing detention was sufficiently restricted in its scope to satisfy applicable constitutional limitations. 2. The Arrest. The appellant next challenges the legality of his arrest. His challenge depends upon the existence vel non of probable cause. Probable cause is a fluid concept. Its existence must be evaluated under the entirety of the circumstances. Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Figueroa, 818 F.2d 1020, 1024 (1st Cir.1987). Probable cause to arrest does not demand either the same quantum of proof or the same degree of certitude as a conviction. Probable cause does, however, require reasonably trustworthy information such as would lead a prudent person to believe that the suspect likely had committed or was committing a criminal offense. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); United States v. Winchenbach, 197 F.3d 548, 555 (1st Cir.1999). Probable cause often accretes gradually as an investigation progresses. So it was here: we agree with the district court that the circumstances giving rise to reasonable suspicion (recounted above) and the developments that unfolded during the Terry stop furnished" }, { "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": "6567003", "title": "", "text": "majority’s reversal of the district court’s order invalidating the warrant for the June 2, 1999 search of Mr. Sparks’ home. For different reasons than the majority, as I explain below, I agree that the May 16, 2001 search of Mr. Sparks’ truck was supported by probable cause. June 2,1999 Arrest and Search I disagree that Mr. Sparks provided the police with probable cause for his arrest by merely stopping his vehicle and picking up a package in plain view on the side of the road close to his own residence. I have no quarrel with the majority that the probable cause inquiry is one based on a totality of the circumstances, Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and requires only a “probability” or “substantial chance” of criminal activity, id. at 243 n. 13, 103 S.Ct. 2317; see also Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). I also agree a possible innocent explanation does not provide a safe harbor for activity that also gives rise to the probability of criminal activity. See Gates, 462 U.S. at 243 n. 13, 103 S.Ct. 2317 (“By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause”). However, these cases do not dictate that a single instance of innocent-appearing conduct provides probable cause. In fact, Supreme Court cases and those from our circuit support my view that probable cause did not exist for the June 2 arrest. “Probable cause to arrest exists when an officer has learned of facts and circumstances through reasonably trustworthy information that would lead a reasonable person to believe that an offense has been or is being committed by the person arrested.” United States v. Vazquez-Pulido, 155 F.3d 1213, 1216 (10th Cir.1998) (citation and quotation omitted). Probable cause thus requires a reasonable probability both that there is criminal conduct afoot and that the particular individual police suspect is the person engaged in that conduct. Id. The connection between Mr. Sparks and the illegal conduct was sparse at best. While the police" }, { "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": "21593564", "title": "", "text": "identify Phauls as one of the two unidentified men. As Phauls and Shannon walked down the ninth floo'r hallway, Haynie specifically pointed to Phauls as a member of Halliman’s group who possessed a gun. Nealis then observed Phauls stop in front of room 903, a room he knew had contained some of the Halliman group’s drugs. At that point, Nealis reasonably concluded that Phauls had engaged in criminal activity. Phauls contends that we should disregard Haynie’s identifying statement because Haynie did not base the statement on reliable information, Brief of Appellant Phauls at 25, and because “there was nothing in [the] statement itself that conveyed its veracity,” id. at 24. Those reasons alone do not render Haynie’s statement irrelevant. See Illinois v: Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (noting that “an informant’s ‘veraci ty,’ ‘reliability,’ and ‘basis of knowledge’ are all highly relevant in determining the value” of an informant’s tip, but that' “these elements should [not] be understood as entirely separate and independent requirements to be rigidly exacted in every case”). As the principal contact for the Halliman investigation, Haynie had already proved to be a reliable informant. Moreover, Officer Nealis did not act on Haynie’s tip until it was further corroborated by Phauls’s conduct in walking toward, then hesitating in front of, room 903. Even were we to determine that the tip alone could not establish probable cause, we find, no reason to ignore it as one of the totality of circumstances establishing probable cause for Phauls’s arrest. See, e.g., United States v. Lucas, 778 F.2d 885, 888 (D.C.Cir.1985) (declining to determine whether anonymous tip alone would have justified arrest because tip was corroborated by suspicious activity). Nor do we agree with Phauls’s assertion that Officer Nealis improperly arrested him for associating with suspected criminals. “[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Ybarra v. Illinois, 444 U.S. 85, 91, 100 5.Ct. 338, 342, 62 L.Ed.2d 238 (1979). As the district court pointed out, however, “the" }, { "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": "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": "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": "7896998", "title": "", "text": "— intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest.” Id. Thus, we look to whether or not the plaintiffs have presented adequate evidence that they were seized without probable cause that a reasonable jury could find for them. This inquiry must be undertaken for each defendant individually. See Sheik-Abdi v. McClellan, 37 F.3d 1240, 1246 (7th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 937, 130 L.Ed.2d 882 (1995). We evaluate probable cause “not on the facts as an omniscient observer would perceive them but on the facts as they would have appeared to a reasonable person in the positions of the arresting officer — seeing what he saw, hearing what he heard.” Mahoney v. Kesery, 976 F.2d 1054, 1057 (7th Cir.1992). Probable cause must be based on more than bare suspicion. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). Probable cause exists where “the facts and circumstances within [the offi cers’] knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a prudent person in believing that the [suspect] had committed or was committing an offense.” Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). On the facts before us, we find that the plaintiffs have presented a question of material fact as to whether Murphy had probable cause to seize Geoffrey and Calvin. Murphy has not established any reason to believe that Geoffrey and Calvin had committed a crime other than the mere fact that they were present in the parking lot. The “seizure of a person must be supported by probable cause particularized with respect to that person.” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979). The plaintiffs’ mere proximity to Jamal, who was suspected of criminal activity, “does not, without more, give rise to probable cause.” Id. Here, Murphy had nothing more to support any suspicion of Geoffrey and Calvin. It is uncontested that in Murphy’s" }, { "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": "2345185", "title": "", "text": "could not reasonably have found probable cause. The appellant’s third line of attack directly challenges the adequacy of the evidence on which the district court’s probable cause determination was based. That challenge requires us to limn the analytic framework for probable cause determinations and then to apply that framework. When there is probable cause for an arrest, the Fourth Amendment’s prohibition against unreasonable searches and seizures is not offended. Atwater v. Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001); Roche, 81 F.3d at 254. Probable cause for an arrest exists when the arresting officer, acting upon apparently trustworthy information, reasonably concludes that a crime has been (or is about to be) committed and that the putative arrestee likely is one of the perpetrators. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Figueroa, 818 F.2d at 1023. Courts use an objective standard when determining the existence of probable cause. Valente v. Wallace, 332 F.3d 30, 32 (1st Cir.2003); Roche, 81 F.3d at 254. The focus is not on certitude, but, rather, on the likelihood of criminal activity. See Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Win- chenbach, 197 F.3d 548, 555 (1st Cir.1999). Finally, courts must apply these principles fluidly to the totality of the extant circumstances. Gates, 462 U.S. at 232 & n. 7, 103 S.Ct. 2317; Winchenbach, 197 F.3d at 555. Here, the existence of probable cause depends, in the first instance, upon the cogency of the account given by the store detective (Powers). Taken at face value, Powers’s tale certainly gave Officer Mitchell reason to believe that a crime had been committed and that the appellant had committed it. The appellant nonetheless argues that Mitchell should have deemed Powers’s statements unreliable (or, at least, suspect) because she had never met him before and, thus, could not accurately assess his credibility. That sets the bar too high. Victims’ complaints are a prime" }, { "docid": "10284604", "title": "", "text": "suppressed as against Ryan. B. In its order denying Ryan's motion to suppress, the district court found that probable cause existed for a warrantless arrest of Ryan, given the discovery of contraband in his passenger's backpack and the fact that \"Officer Mercado watched [Caicedo] proceed directly to Ryan's car as if it were part of a plan, saw that Ryan appeared shaken when he saw the uniformed officer observing him and began to drive away prior to the passenger door being closed.\" The court concluded that \"[t]hese observations suggested that Ryan probably knew what business the defendants were pursuing and that this was more than mere association.\" Id. Ryan continues to maintain on appeal that his nervousness and mere propinquity to Calcedo were insufficient grounds to justify his arrest, citing Sibron v. State of New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902-03, 20 L.Ed.2d 917 (1968) and Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979). The facts and circumstances leading up to his arrest, he argues, would not lead a reasonable person to believe that Ryan had knowledge of Caicedo's \"illicit cargo.\" Therefore, he contends that his arrest was illegal and that all statements he made to police following his arrest should be suppressed as a product of that illegality. We disagree. The facts leading up to the arrest of Ryan suggest much more than \"mere propinqulty\" to a criminal suspect. Police may arrest a person without a warrant if they have probable cause at the time of the arrest to believe that the person has committed or is committing a crime. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); United States v. Sangineto-Miranda, 859 F.2d 1501, 1508 (6th Cir.1988). Probable cause is a standard more stringent than reasonable suspicion, see United States v. Braggs, 23 F.3d 1047, 1049 (6th Cir.), cert. denied, - U.S. -, 115 S.Ct. 274, 130 L.Ed.2d 191 (1994), but does not require any showing that the officer's suspicions prove to be correct or that they are more likely true" }, { "docid": "18247650", "title": "", "text": "him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding’ that probable cause existed. 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (internal quotation marks and citation omitted). “Probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Id. at 232, 103 S.Ct. at 2329. The Fourth Amendment, however, “generally bars officials from undertaking a search or seizure absent individualized suspicion.” Chandler v. Miller, 520 U.S. 305, 308, 117 S.Ct. 1295, 1298, 137 L.Ed.2d 513 (1997). It is well established that a search “must be supported by probable cause particularized with respect to that person,” and that “mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979). Shields asserts that the excised affidavit does not include sufficient particularized information to support a finding that there was probable cause for issuance of the warrant in his case and that his mere propinquity to other e-group members is an insufficient basis on which to establish probable cause per Ybarra. In addition, Shields asserts that the district court erred in concluding that the websites fairly can be characterized as having wholly illegal purposes and that, in any event, nothing in the affidavit links the generic profile of child pornography collectors to him. The prosecution counters by arguing that Shields premises his challenge on “one narrow aspect of the affidavit,” Appellee’s br. at 13, namely, the assertion that every member, including Shields, automatically received every e-mail containing images of child pornography. To be sure, the prosecution understates the import of this so-called “narrow aspect.” Although the prosecution states that “the error was not recognized,” thus resulting in submission of the" }, { "docid": "6228466", "title": "", "text": "at the moment of arrest, “the facts and circumstances within their knowledge and of which they had reasonably trustworthy information [are] 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, 13 L.Ed.2d 142 (1964); see also United States v. Patrick, 899 F.2d 169, 171 (2d Cir.1990) (“[p]robable cause to arrest a person exists if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested”). “Probable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts.” United States v. Cruz, 834 F.2d 47, 50-51 (2d Cir.1987). The concept concerns “ ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (citations omitted). The widespread and lawful presence of an item in society undercuts the reasonableness of an officer’s belief that it represents contraband. See U.S. v. Romy, 1997 WL 1048901 at *8 (E.D.N.Y.1997) (“I reject the argument that the mere possession of cellular phones provides probable cause to believe Romy had committed a crime or even reasonable suspicion that he might have. To conclude otherwise would be to ignore the ubiquity of cellular phones in our society”); United States v. Townsend, 138 F.Supp.2d 968, 977 (S.D.Ohio 2000) (same); United States v. Ho, 94 F.3d 932 (5th Cir.1996) (finding recovery of white plastic swipe cards with magnetic strips on back did not create probable cause to believe defendant possessed fraudulent credit cards because of prevalence of such cards). IV. Application A. Terry v. Ohio [7] Determining whether officer McCabe had reasonable suspicion to stop defendant requires consideration of the specific reasonable inferences which he was entitled to draw from the facts. The officer seized defendant based solely on seeing a metal clip" } ]

[ { "docid": "17530922", "title": "", "text": "law enforcement officials’ testimony was sufficient to establish probable cause. Under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), if an application or affidavit contains ' errors reflecting deliberate falsehoods or reckless disregard 'for the truth, the issuing court must “set aside those statements and then review the remaining portions of the affidavits to see if what remain[s is] sufficient to establish probable cause.” United States v. I.I. Ozar, 50 F.3d 1440, 1443 (8th Cir.1995) (citing United States v. Garcia, 785 F.2d 214, 222 (8th Cir.1986)); see also, Schwartz v. Pridy, 94 F.3d 453, 457 (8th Cir.1996). Here, there was enough independent evidence consisting of the taped conversations with Bill Walden, and the personal observations of the two law enforcement officials from which the issuing judge could have found probable cause existed for the issuance of the search warrant. Consequently, we find that the testimony given before the issuing judge sufficiently established the reliability and credibility of the confidential informant, and that the application and affidavit based upon this testimony provided a substantial basis upon which the issuing judge could conclude that probable cause existed. Upon review of the record in a light most favorable to the appellees, the Court finds that appellant Carmack did hot violate the clearly established Fourth Amendment right against issuance of a search warrant without probable cause, and thus, is entitled to summary judgment on the basis of qualified immunity on this claim. C. Unreasonable Execution of the Search Warrant The appellees next contend that their Fourth and Fourteenth Amendment rights were violated because the execution of the search warrant was unreasonable. They contend that, not only was the search unconstitutional because the search warrant was issued without probable cause, but the resulting seizure of numerous items went beyond the scope of the search warrant. These arguments also are not persuasive. Although the search warrant was issued after a proper finding of probable cause, it does not necessarily follow that the execution of a valid warrant is also constitutional. A search warrant can be based on the best of probable" } ]

[ { "docid": "6429653", "title": "", "text": "(1st Cir.1992). Qualified immunity protects both federal and state officials from liability for damages in a civil rights action if “a reasonable officer could have believed [his actions] to be lawful, in light of clearly established law and the information the [acting] officer[ ] possessed.” Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987). There are two aspects to this standard. The first inquiry is whether the constitutional right asserted by plaintiffs was clearly established at the time of the alleged violation. The second, if the right was clearly established, is whether a reasonable officer in the same situation would “have understood that the challenged conduct violated that established right.” Hegarty v. Somerset Coun ty, 58 F.3d 1367,1373 (1st Cir.1995) (quoting Burns v. Loranger, 907 F.2d 233, 235-36 (1st Cir.1990)). If the first level of the analysis yields a determination that the asserted constitutional right was not clearly established at the relevant time, then we need not proceed to the second prong; there is qualified immunity. See Soto v. Flores, 103 F.3d 1056, 1064-65 (1st Cir.1997). A. The Use of False Statements to Obtain a Search Warrant In 1978, the Supreme Court held in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), that the use of false statements to obtain a warrant, where the false statements are necessary to the finding of probable cause, violates the Fourth Amendment’s warrant requirement. As the Franks Court noted, the Warrant Clause of the Fourth Amendment itself contemplates the affiant’s truthfulness: [N]o warrants shall issue, but upon probable cause, supported by Oath or affirmation. 438 U.S. at 164, 98 S.Ct. at 2681 (quoting U.S. Const, amend. IV). Franks involved a challenge to a warrant in a criminal proceeding and set forth the elements of a challenge: there must be allegations of deliberate falsehood or of reckless disregard for the truth on the part of the affiant; these allegations must be supported by an affidavit or sworn or otherwise reliable statements; the allegations must point specifically to the portion of the warrant application claimed" }, { "docid": "12236129", "title": "", "text": "judgment on Hunter’s state-law claims. After hearing argument, the district court delivered an oral ruling denying Na-manny’s summary judgment motion. Addressing Hunter’s Fourth Amendment claim, the court rejected Namanny’s argument concerning the addition of alleged omissions and reconstructed the affidavit consistent with our decisions in United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986) and United States v. Dennis, 625 F.2d 782, 791 (8th Cir.1980), by removing from the affidavit allegedly false statements and including omissions allegedly made with the intent to mislead. The affidavit so reconstructed omitted Naman-ny’s account of his encounter with Davis and substituted Davis’ account. The reconstructed affidavit also recounted that surveillance of Hunter’s home on July 1 from 8:00 p.m. to midnight detected no traffic to or from the home except two vehicles registered to Hunter, and that Davis was not charged with any criminal offense as a result of the discovery of crack in her possession. The court determined that although the anonymous complaint regarding drug activity at Hunter’s residence might have provoked a reasonable suspicion, no reasonable officer or magistrate would have issued a warrant based on the facts recited in the reconstructed affidavit. Although the question of qualified immunity for Hunter’s remaining constitutional claims was raised in the parties’ arguments, the court did not specifically address those arguments in its ruling denying Naman-ny’s motion. Namanny appeals, renewing his argument that Davis’ account of events should not form the basis for both an omission from and an addition to the reconstructed affidavit. Namanny also contends the district court erred in denying him qualified immunity with respect to Hunter’s remaining constitutional claims. II. Discussion The district court’s denial of Namanny’s motion for summary judgment on qualified immunity is an immediately appealable final order because it turns on a legal determination whether certain facts show a violation of clearly established law. See Behrens v. Pelletier, 516 U.S. 299, 806, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); Pendleton v. St. Louis County, 178 F.3d 1007, 1010 (8th Cir.1999). Our review is de novo. See Collins v. Bellinghausen, 153 F.3d 591, 595 (8th Cir.1998). Qualified immunity" }, { "docid": "7827398", "title": "", "text": "qualified immunity if there exists a genuine issue of material fact or the moving party is not entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Detectives Tinkham and Hanlen claim that the district court erred by denying summary judgment on the basis of qualified immunity. When state officials are sued for violating a clearly established federal right, the doctrine of qualified immunity shields them from personal liability if a reasonable official in their position would not have known that his actions violated a clearly established right. See Walden v. Carmack, 156 F.3d 861, 868-69 (8th Cir.1998). In other words, “[t]he qualified immunity doctrine shields state actors from personal liability where their actions, though unlawful, are nevertheless objectively reasonable in light of the clearly established law at the time of the events in question.” Rogers v. Carter, 133 F.3d 1114, 1119 (8th Cir.1998) (citing Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Clearly established Fourth Amendment law requires a warrant application to contain a truthful factual showing of probable cause — “truthful in the sense that the information put forth is ‘believed or appropriately accepted by the affiant as true.’ ” Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir.1994) (quoting Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). To preclude a grant of qualified immunity, a “warrant application [must be] so lacking in indicia of probable cause as to render official belief in its existence unreasonable.” George v. City of St Louis, 26 F.3d 55, 57 (8th Cir.1994) (citing Malley v. Briggs, 475 U.S. 335, 344-45, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). For purposes of qualified immunity, “[t]he issue is not whether the affidavit actually establishes probable cause, but rather whether the officer had an objectively reasonable belief that it established probable cause.” Thompson v. Reuting, 968 F.2d 756, 760 (8th Cir.1992). Detective Tinkham and Sergeant Hanlen claim that they had an objectively reasonable belief" }, { "docid": "12236132", "title": "", "text": "by Hunter, if true, describe a violation of her Fourth Amendment rights. See Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (warrant based upon affidavit containing “deliberate falsehood” or reflecting “reckless disregard for the truth” violates Fourth Amendment). However, Namanny is nevertheless entitled to qualified immunity if the warrant affidavit, as reconstructed according to Franks, would still provide probable cause to arrest or search. See Bagby v. Brondhaver, 98 F.3d 1096, 1099 (8th Cir.1996). We believe a properly reconstructed affidavit would not have provided probable cause to search Hunter’s home. In this regard, we believe the affidavit was properly reconstructed by the district court. As appellant concedes, under Franks, the reconstructed affidavit must omit Namanny’s account of his encounter with Davis. See Franks, 438 U.S. at 171, 98 S.Ct. 2674. Further, a reconstructed affidavit must also include material allegedly omitted with reckless disregard for the truth. See United States v. Gladney, 48 F.3d 309, 313-14 (8th Cir.1995); United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir.1993); United States v. Flagg, 919 F.2d 499, 501 (8th Cir.1990); United States v. Lueth, 807 F.2d 719, 726 (8th Cir.1986); Reivich, 793 F.2d at 960-61; Dennis, 625 F.2d at 791. Where, as here, the allegedly omitted information would have been clearly critical to the probable cause determination, recklessness may be inferred. See Reivich, 793 F.2d at 961. Thus, the district court properly included in the reconstructed affidavit Davis’ version of her encounter with Namanny, as well as the fact that Namanny’s four-hour stakeout on July 1 was fruitless. We decline Namanny’s suggestion to modify Reivich such that Davis’ version of events would not be considered. To do so would skirt Franks ’ insistence that a probable cause determination be made on information that is truthful: When the Fourth Amendment demands a factual showing sufficient to comprise “probable cause,” the obvious assumption is that there will be a truthful showing. This does not mean “truthful” in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and" }, { "docid": "21782593", "title": "", "text": "are entitled to qualified immunity focuses on whether the Appellants have asserted a violation of a clearly-established constitutional right and, if so, whether there are genuine issues of material fact as to whether a reasonable official would have known that the alleged action indeed violated that right. See Hunter v. Namanny, 219 F.3d 825, 829 (8th Cir.2000). The law was plearly established at the time in question in this case that an affidavit for a search warrant containing materially false statements or omissions knowingly or recklessly made in conscious disregard for the truth violates the Fourth Amendment. See Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). However, the officers would be entitled to qualified immunity if the affidavit, when reconstructed to include the omitted information, would still provide probable cause. See id. We first address whether the officers knowingly or recklessly omitted facts in conscious disregard for the truth. There is no evidence indicating that Deputy Anderson revealed the information about the wall-shooting incident or the land dispute to Officer Svoboda. Accordingly, Svoboda cannot be said to have knowingly or recklessly disregarded the truth when he prepared the affidavit. With regard to Deputy Anderson, there are some instances when recklessness may be inferred from the fact of omission of information. Such an inference, however, is warranted only when the material omitted would have been “clearly critical” to the finding of probable cause. See United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986). While shooting ducks off a wall is not the usual way of duck hunting, we agree with the district court that there was no evidence that Anderson had reason to believe from this incident that the informant was mentally impaired, as it was an isolated incident that occurred some ten to twelve years earlier. As to the land dispute between the informant and his brother, Anderson’s uncontroverted testimony indicated that he had not heard of problems between the brothers since 1987 and had no reason to believe any animosity still existed. We conclude that the information concerning the shooting incident and" }, { "docid": "12236130", "title": "", "text": "officer or magistrate would have issued a warrant based on the facts recited in the reconstructed affidavit. Although the question of qualified immunity for Hunter’s remaining constitutional claims was raised in the parties’ arguments, the court did not specifically address those arguments in its ruling denying Naman-ny’s motion. Namanny appeals, renewing his argument that Davis’ account of events should not form the basis for both an omission from and an addition to the reconstructed affidavit. Namanny also contends the district court erred in denying him qualified immunity with respect to Hunter’s remaining constitutional claims. II. Discussion The district court’s denial of Namanny’s motion for summary judgment on qualified immunity is an immediately appealable final order because it turns on a legal determination whether certain facts show a violation of clearly established law. See Behrens v. Pelletier, 516 U.S. 299, 806, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); Pendleton v. St. Louis County, 178 F.3d 1007, 1010 (8th Cir.1999). Our review is de novo. See Collins v. Bellinghausen, 153 F.3d 591, 595 (8th Cir.1998). Qualified immunity shields Namanny from personal liability if his actions, though unlawful, were “nevertheless objectively reasonable in light of the clearly established law at the time of the events in question.” Rogers v. Carter, 133 F.3d 1114, 1119 (8th Cir.1998) (citing Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). We analyze Namanny’s claim of qualified immunity using a three-part inquiry: (1) whether Hunter has asserted a violation of a constitutional or statutory right; (2) if so, whether that right was clearly established at the time of the violation; and (3) whether, viewing the facts in the light most favorable to Hunter, there are genuine issues of material fact as to whether a reasonable official would have known that the alleged action indeed violated that right. See Yowell v. Combs, 89 F.3d 542, 544 (8th Cir.1996). In analyzing whether Hunter has asserted a constitutional violation, we examine both the evidence presented and the allegations of Hunter’s complaint. See Walden v. Carmack, 156 F.3d 861, 869 (8th Cir.1998). We believe the facts alleged" }, { "docid": "7648809", "title": "", "text": "not contest many of the district court’s findings, but continue to argue lack of probable cause for the search warrant, “knock and announce” violations, unreasonable use of flash bang devices, and unnecessary property damage resulting from the search. II. ANALYSIS A. Qualified Immunity Defense .We review a grant of summary judgment de novo. See Campbell v. Towse, 99 F.3d 820, 826 (7th Cir.1996). A movant is entitled to judgment as a matter of law only if there is no genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We view the evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. See Chavez v. Ill. State Police, 251 F.3d 612, 635 (7th Cir.2001). The officers, who are all sued in their individual capacities, assert a qualified immunity defense. Here, we focus on whether, taking the facts in the light most favorable to the Molinas, the officers’ conduct violated the Molinas’ constitutional rights. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Assuming this requirement is met, the next question is whether the constitutional right at issue was clearly established such that a reasonable officer would understand that his actions violated that right. Id. at 201-02, 121 S.Ct. 2151. The Molinas bear the burden of defeating this defense. See Sparing v. Vill. of Olympia Fields, 266 F.3d 684, 688 (7th Cir.2001). B. Probable Cause The plaintiffs allege that the search warrant for their home was not supported by probable cause because Officer Cooper both omitted information and provided false and misleading information in the affidavit he presented to obtain the warrant. However, “[t]here is ... a presumption of validity with respect to the affidavit supporting the search warrant.” See Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). To overcome this hurdle, the Mohnas must provide evidence that the officers “knowingly or intentionally or with a reckless disregard for the truth, made false statements to the judicial officer, and that the false statements were" }, { "docid": "12236143", "title": "", "text": "deposition testimony here, however, is not a naked allegation of the plaintiff but a statement by a witness that she told the officer she did not obtain the drugs from Ms. Hunter. If taken as true (which is the light most favorable to the plaintiff), this statement is probative of whether the officer knowingly made a false statement or material omission in the warrant affidavit. If Officer Namanny is challenging the veracity of Ms. Davis’s statements in this appeal, then the issue becomes no more than a dispute concerning the sufficiency of the evidence over which we have no interlocutory jurisdiction. See Behrens v. Pelletier, 516 U.S. at 313, 116 S.Ct. 834; Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). BEAM, Circuit Judge, dissenting. I respectfully suggest that the court applies both inapposite precedent and an inapplicable standard of proof. This, in turn, leads to a faulty legal conclusion. Accordingly, I dissent. This 42 U.S.C. § 1983 case is before the court after a district court order denying Namanny’s motion for summary judgment. As the court notes, we analyze Namanny’s claim of qualified immunity using a three-part inquiry: (1) whether Hunter has asserted a violation of a constitutional right; (2) if so, whether the right was clearly established at the time of the constitution al violation; and (3) whether, viewing the record most favorably to Hunter, there is no genuine issue of material fact as to whether a reasonable police officer would have known that the acts in question violated Hunter’s constitutional rights. See Yowell v. Combs, 89 F.3d 542, 544 (8th Cir.1996). Ours is a de novo review in which we apply the same standards as those that should have been applied by the district court. See Disesa v. St. Louis Community College, 79 F.3d 92, 94 (8th Cir.1996). Under the first inquiry, the court concludes that if the modified affidavit was insufficient to establish probable cause to search, a constitutional violation sufficient to support Hunter’s section 1983 claim has been established. This is clearly incorrect. In reaching this conclusion, the court cites" }, { "docid": "12236137", "title": "", "text": "(8th Cir.1998), we next consider the objective reasonableness of Namanny’s actions, i.e., whether there are genuine issues of material fact as to whether a reasonable official would have known that Namanny’s actions violated that requirement, see Yowett, 89 F.3d at 544. Namanny points to the discovery of cocaine in Davis’ possession to support his contention that the existence of probable cause was at least arguable. Namanny also notes that even if Davis’ account were true he would not have been required to believe that she was given the crack in a convenience store. We acknowledge that probable cause determinations are not a matter of “library analysis by scholars.” Gates, 462 U.S. at 232, 103 S.Ct. 2317 (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). However, given the genuine factual disputes that remain, a jury must decide whether Namanny’s actions were objectively reasonable. Viewing the facts in the light most favorable to Hunter, the nexus between Hunter’s house and the cocaine discovered in Davis’ possession was tenuous at best, and Namanny was not entitled to summary judgment. Namanny asks that we consider whether he was entitled to qualified immunity with respect to Hunter’s remaining constitutional claims, despite the district court’s failure to explicitly do so. “Where the record on appeal is sufficiently clear, remand is not required for the resolution of issues not addressed by the district court.” Holloway v. Conger, 896 F.2d 1131, 1137 (8th Cir.1990); see also Collins v. Bellinghausen, 153 F.3d 591, 595 (8th Cir.1998). We believe the record here is sufficiently clear to permit us to resolve those issues. In his summary judgment motion, Namanny argued he was entitled to qualified immunity with respect to Hunter’s other constitutional claims, including any claimed violation of rights resulting from his denial of Hunter’s request to use the toilet. We agree. We find no authority for the existence of a right on the part of one who is lawfully detained pursuant to the execution of a search warrant, see Michigan v. Summers, 452 U.S. 692, 704-05, 101 S.Ct. 2587, 69 L.Ed.2d 340" }, { "docid": "23269643", "title": "", "text": "the District Court’s ruling as to Walsh and Boek. Discussion As government officials performing discretionary functions, the defendants enjoy a qualified immunity that shields them from personal liability for damages under section 1983 “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Zavaro v. Coughlin, 970 F.2d 1148, 1153 (2d Cir.1992), or insofar as it was objectively reasonable for them to believe that their acts did not violate those rights, see Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987); Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir.1994), petition for cert. filed, 63 U.S.L.W. 3268 (Sept. 14, 1994). A. Procurement of the Search Warrants The Velardis allege that Walsh and Boek deliberately or recklessly misled the magistrates who issued the search warrants. “Where an officer knows, or has reason to know, that he has materially misled a magistrate on the basis for a finding of probable cause, ... the shield of qualified immunity is lost.” Golino v. City of New Haven, 950 F.2d 864, 871 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 3032, 120 L.Ed.2d 902 (1992) (citations omitted). A section 1983 plaintiff challenging a warrant on this basis must make the same showing that is required at a suppression hearing under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978): the plaintiff must show that the affiant knowingly and deliberately, or with a reckless disregard of the truth, made false statements or material omissions in his application for a warrant, and that such statements or omissions were necessary to the finding of probable cause. Golino, 950 F.2d at 870-71; see Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684-85. Unsupported eonclusory allegations of falsehood or material omission cannot support a Franks challenge; to mandate a hearing, the plaintiff must make specific allegations accompanied by an offer of proof. See Franks, 438 U.S. at 171, 98 S.Ct. at" }, { "docid": "12236131", "title": "", "text": "shields Namanny from personal liability if his actions, though unlawful, were “nevertheless objectively reasonable in light of the clearly established law at the time of the events in question.” Rogers v. Carter, 133 F.3d 1114, 1119 (8th Cir.1998) (citing Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). We analyze Namanny’s claim of qualified immunity using a three-part inquiry: (1) whether Hunter has asserted a violation of a constitutional or statutory right; (2) if so, whether that right was clearly established at the time of the violation; and (3) whether, viewing the facts in the light most favorable to Hunter, there are genuine issues of material fact as to whether a reasonable official would have known that the alleged action indeed violated that right. See Yowell v. Combs, 89 F.3d 542, 544 (8th Cir.1996). In analyzing whether Hunter has asserted a constitutional violation, we examine both the evidence presented and the allegations of Hunter’s complaint. See Walden v. Carmack, 156 F.3d 861, 869 (8th Cir.1998). We believe the facts alleged by Hunter, if true, describe a violation of her Fourth Amendment rights. See Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (warrant based upon affidavit containing “deliberate falsehood” or reflecting “reckless disregard for the truth” violates Fourth Amendment). However, Namanny is nevertheless entitled to qualified immunity if the warrant affidavit, as reconstructed according to Franks, would still provide probable cause to arrest or search. See Bagby v. Brondhaver, 98 F.3d 1096, 1099 (8th Cir.1996). We believe a properly reconstructed affidavit would not have provided probable cause to search Hunter’s home. In this regard, we believe the affidavit was properly reconstructed by the district court. As appellant concedes, under Franks, the reconstructed affidavit must omit Namanny’s account of his encounter with Davis. See Franks, 438 U.S. at 171, 98 S.Ct. 2674. Further, a reconstructed affidavit must also include material allegedly omitted with reckless disregard for the truth. See United States v. Gladney, 48 F.3d 309, 313-14 (8th Cir.1995); United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir.1993); United States" }, { "docid": "12236127", "title": "", "text": "officers entered Hunter’s house, Hunter’s fifteen-year-old son Charles Franks was in bed in his second-floor bedroom. Franks was handcuffed at gunpoint and led downstairs while his room was searched. No evidence of criminal conduct was found at Hunter’s home, and the officers left the residence at approximately 3:30 a.m. Hunter filed suit against Namanny in Iowa state court, claiming that Namanny’s actions violated her and Franks’ Fourth Amendment and Due Process rights, and constituted an excessive use of force and various torts under Iowa law. After Na-manny removed the action to the district court in July 1997, Davis was deposed. At her deposition, Davis contradicted portions of the warrant affidavit. Specifically, Davis denied telling the officers who questioned her that she had purchased cocaine from Hunter. Instead, Davis testified that she told the officers that between the time she left Hunter’s house and when she was pulled over, she had stopped at a local convenience store where an individual whom she could identify only as Charles gave her the cocaine. Namanny moved for summary judgment on qualified immunity grounds, contending that even if the warrant affidavit were reconstructed to exclude allegedly false information and include critical information allegedly omitted with the intention to mislead, it would still support probable cause. Namanny also argued that Davis’ statements should not be included in a reconstructed affidavit. He maintained that the inclusion of omitted information supplied by one who, like Davis, also provides the basis for the plaintiffs claim that the affidavit included false information would give undue weight to that person’s account. Namanny argued that a plaintiff could easily defeat probable cause and avoid summary judgment merely by convincing a witness to recant. Namanny further argued that he was entitled to summary judgment on any constitutional claim arising out of his denial of Hunter’s request to use the toilet, as no clearly-established constitutional law required him to grant such a request. Namanny contended that Hunter’s excessive-force claim failed because his actions in executing the search warrant were reasonable as a matter of law. Finally, Namanny argued that he was entitled to summary" }, { "docid": "21782592", "title": "", "text": "did not have full and fair opportunity to litigate at suppression hearing as he had no control over State’s presentation of its case). We next address the district court’s grant of summary judgment to the officers based upon qualified-immunity. We review this ruling de novo. See Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir.2001). Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In deciding whether the officers are entitled to summary judgment, we view the summary judgment record in a light most favorable to the Appellants, affording them the benefit of all reasonable inferences. See Tlamka, 244 F.3d at 632. Qualified immunity shields governmental officials from personal liability if their actions, even if unlawful, were “nevertheless objectively reasonable in light of the clearly established law at the time of the events in question.” Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The inquiry in determining whether the officers are entitled to qualified immunity focuses on whether the Appellants have asserted a violation of a clearly-established constitutional right and, if so, whether there are genuine issues of material fact as to whether a reasonable official would have known that the alleged action indeed violated that right. See Hunter v. Namanny, 219 F.3d 825, 829 (8th Cir.2000). The law was plearly established at the time in question in this case that an affidavit for a search warrant containing materially false statements or omissions knowingly or recklessly made in conscious disregard for the truth violates the Fourth Amendment. See Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). However, the officers would be entitled to qualified immunity if the affidavit, when reconstructed to include the omitted information, would still provide probable cause. See id. We first address whether the officers knowingly or recklessly omitted facts in conscious disregard for the truth. There is no evidence indicating that Deputy Anderson revealed the information about the wall-shooting incident or the land dispute to" }, { "docid": "12236134", "title": "", "text": "upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily. But surely it is to be “truthful” in the sense that the information put forth is believed or appropriately accepted by the affiant as true. Franks, 438 U.S. at 164-65, 98 S.Ct. 2674 (internal quotation omitted). Where a plaintiff has made a sufficient showing that the warrant affidavit omitted information critical to the probable cause determination, truthfulness requires that that information be included in the reconstructed affidavit. This principle applies a fortiori where, as here, the allegedly omitted information runs nearly perpendicular to the information supplied in the warrant affidavit. We note that public officials like Na-manny are protected from spurious § 1983 lawsuits based on warrant affidavits by Franks ’ requirement of a “substantial preliminary showing”; challenges to warrant affidavits may not be conclusory, and must be accompanied by adequate evidentiary support. See Franks, 438 U.S. at 170-71, 98 S.Ct. 2674; United States v. McNeil, 184 F.3d 770, 775-76 (8th Cir.1999); United States v. Wajda, 810 F.2d 754, 759 (8th Cir.1987) (noting substantiality requirement “is not lightly met”). We do agree, however, with Namanny’s contention that the district court should not have included in the reconstructed affidavit the fact that Davis had not been charged with any criminal offense. In so doing, the district court confused the mandate of Franks with the disclosure requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Simply put, that Davis was not charged with a crime is not critical to a probable cause determination, and therefore supports no inference of recklessness with the truth. Cf. Reivich, 793 F.2d at 962-63 (holding that promises of leniency to witnesses did not rise to level of omissions made with reckless disregard for truth). That said, we have no difficulty concluding that a warrant affidavit properly reconstructed from facts viewed in the light most favorable to Hunter would have been insufficient to establish probable cause. Probable cause for a warrant exists only when the totality of the circumstances provides sufficient" }, { "docid": "2080158", "title": "", "text": "Wertish v. Krueger, 433 F.3d 1062, 1067 (8th Cir.2006) (holding that “relatively minor scrapes and bruises and the less-than-permanent aggravation of a prior shoulder condition” were de minimis injuries). McCrystal is not entitled to summary judgment based on qualified immunity from Small’s claim of excessive force. C. The Warrant Plaintiffs allege that the deputies violated their Fourth Amendment rights by arresting them without probable cause. They argue that the deputies’ false reports deceived the prosecutors (who filed the warrant affidavits) and the magistrates (who issued the warrants), and that considering only truthful information, there was no probable cause to arrest them. “[I]t is clearly established that the Fourth Amendment requires a warrant application to contain a truthful factual showing of probable cause.... ” Hunter v. Namanny, 219 F.3d 825, 831 (8th Cir.2000). “A warrant based upon an affidavit containing ‘deliberate falsehood’ or ‘reckless disregard for the truth’ violates the Fourth Amendment.” Bagby v. Brondhaver, 98 F.3d 1096, 1098 (8th Cir.1996), quoting Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The intervening act of a prosecutor, magistrate, or grand jury may relieve an officer of liability for a false arrest. See Ames v. United States, 600 F.2d 183, 185 (8th Cir.1979). Officers remain liable, however, for the reasonably foreseeable acts of actors they deceive. See id. (holding that a grand jury indictment breaks the chain of causation between the officer’s act and the institution of criminal proceedings “absent any specific allegation, such as the presentation of false evidence or the withholding of evidence”); Evans v. Chalmers, 703 F.3d 636, 647-49 (4th Cir.2012); Sykes v. Anderson, 625 F.3d 294, 314-15 (6th Cir.2010); Higazy v. Templeton, 505 F.3d 161, 177 (2d Cir.2007); Borunda v. Richmond, 885 F.2d 1384, 1390 (9th Cir.1988); Jones v. City of Chicago, 856 F.2d 985, 993-94 (7th Cir.1988); Hand v. Gary, 838 F.2d 1420, 1427-28 (5th Cir.1988). An officer may be liable for an unlawful arrest despite a magistrate’s authorization where “a reasonably well-trained officer ... would have known that his affidavit failed to establish probable cause and that he should not have" }, { "docid": "2878977", "title": "", "text": "victim John Doe w/m DOB 5-31-84 being approximately 4 to 5 years old at the time of the assaults, date 1-10-90 thru 7-90 took John Doe to Joy Lee Pouge residence to bedroom, and sexually assaulted John Doe. — Pacifically inserting his penis into her mouth. Cheryl Twyford allowed incident to occur. Statements from witnesses indicate that the suspect was observed having sex with the victim John Doe. The Municipal Judge issued warrants to arrest each target. Bagby was arrested and charged with rape. The charges against her were later dismissed without prejudice by another judge, who concluded that Brondhaver’s affidavit had misled the Municipal Judge because it did not include J.T.’s exculpatory statement, it did not disclose the reliability of witness Ivy, and the last sentence “would lead a reasonable person to believe that more than one person witnessed the alleged sexual activity.” Bagby then filed this § 1983 damage action, alleging that Brondhaver violated her Fourth and Fourteenth Amendment rights by submitting a false and misleading affidavit. The district court denied Brondhaver qualified immunity because “[i]t was not objectively reasonable for the defendant to submit an affidavit that contained materially false statements.” Brondhaver appeals. The parties agree that this qualified immunity order is immediately appealable. See Behrens v. Pelletier, — U.S. —, —, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996); Reece v. Groose, 60 F.3d 487, 489 (8th Cir.1995). Brondhaver is entitled to qualified immunity if his conduct did not violate clearly established rights of which a reasonable person would have known. The doctrine “gives ample room for mistaken judgments but does not protect the plainly incompetent or those who knowingly violate the law.” Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir.1995), quoting Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). A warrant based upon an affidavit containing “deliberate falsehood” or “reckless disregard for the truth” violates the Fourth Amendment. Franks, 438 U.S. at 171, 98 S.Ct. at 2684. An official who causes such a deprivation is subject to § 1983 liability. See Burk v. Beene, 948 F.2d 489, 494 (8th" }, { "docid": "2080157", "title": "", "text": "believed that as long as he did not cause more than de minimis injury to an arrestee, his actions would not run afoul of the Fourth Amendment.” See Chambers v. Pennycook, 641 F.3d 898, 908 (8th Cir.2011). Viewing the facts most favorably to Small: McCrystal tackled him and his face landed on the gravel parking lot, resulting in three lacerations above his eye that covered his face with blood. Small was taken to the hospital in an ambulance, where the lacerations were treated without stitches. In this case, Small suffered more than a de minimis injury. See Copeland, 613 F.3d at 881 (holding that cuts, abrasions, and an injury to the knee support a finding of excessive force); Lambert v. City of Dumas, 187 F.3d 931, 936 (8th Cir.1999) (holding that a single small cut on the eyelid and small scrapes of the knee and calf support a finding of excessive force); Dawkins v. Graham, 50 F.3d 532, 535 (8th Cir.1995) (holding that bruises and a facial laceration support a finding of excessive force); cf. Wertish v. Krueger, 433 F.3d 1062, 1067 (8th Cir.2006) (holding that “relatively minor scrapes and bruises and the less-than-permanent aggravation of a prior shoulder condition” were de minimis injuries). McCrystal is not entitled to summary judgment based on qualified immunity from Small’s claim of excessive force. C. The Warrant Plaintiffs allege that the deputies violated their Fourth Amendment rights by arresting them without probable cause. They argue that the deputies’ false reports deceived the prosecutors (who filed the warrant affidavits) and the magistrates (who issued the warrants), and that considering only truthful information, there was no probable cause to arrest them. “[I]t is clearly established that the Fourth Amendment requires a warrant application to contain a truthful factual showing of probable cause.... ” Hunter v. Namanny, 219 F.3d 825, 831 (8th Cir.2000). “A warrant based upon an affidavit containing ‘deliberate falsehood’ or ‘reckless disregard for the truth’ violates the Fourth Amendment.” Bagby v. Brondhaver, 98 F.3d 1096, 1098 (8th Cir.1996), quoting Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)." }, { "docid": "12236145", "title": "", "text": "only precedent involving the suppression of evidence in criminal prosecutions— not section 1983 qualified immunity cases. See ante at 829-30 (citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); United States v. Reivich, 793 F.2d 957 (8th Cir.1986) and United States v. Dennis, 625 F.2d 782 (8th Cir.1980) (citations omitted)). This is error. These suppression cases are of value in determining a police officer’s duties. However, the search of a residence through use of a warrant issued without probable cause does not mean that the resident has established a constitutional violation sufficient to support a section 1983 claim against the police officer who attempted to supply the probable cause necessary to obtain the warrant. Following Franks, the plaintiff, in an official immunity case, must prove (1) that an affiant, in applying for a warrant, knowingly and deliberately, or with reckless disregard for the truth, made false statements or omissions that created a substantial falsehood, and (2) that such statements or omissions were material and necessary to the finding of probable cause. See Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir.1997) (citing Franks, 438 U.S. at 171-72, 98 S.Ct. 2674). See also Myers v. Morris, 810 F.2d 1437, 1457-58 (8th Cir.1987), abrogated on other grounds, Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). A showing of inadvertence, negligence, or even gross negligence in presenting or failing to present facts to the issuing judge does not carry the day for a section 1983 plaintiff. When such a claim is asserted and the defendant moves for summary judgment alleging qualified immunity, the plaintiff has the burden of establishing the existence of a genuine issue of material fact as to whether or not knowing, willful, and reckless conduct has occurred. See Moody v. St. Charles County, 23 F.3d 1410, 1411 (8th Cir.1994). This cannot be done through naked allegations and fanciful claims. See id. at 1412. Hunter “must substantiate [her] allegations with ‘sufficient probative evidence that would permit a finding in [her] favor [by a reasonable jury] on more than mere speculation, conjecture" }, { "docid": "12236144", "title": "", "text": "motion for summary judgment. As the court notes, we analyze Namanny’s claim of qualified immunity using a three-part inquiry: (1) whether Hunter has asserted a violation of a constitutional right; (2) if so, whether the right was clearly established at the time of the constitution al violation; and (3) whether, viewing the record most favorably to Hunter, there is no genuine issue of material fact as to whether a reasonable police officer would have known that the acts in question violated Hunter’s constitutional rights. See Yowell v. Combs, 89 F.3d 542, 544 (8th Cir.1996). Ours is a de novo review in which we apply the same standards as those that should have been applied by the district court. See Disesa v. St. Louis Community College, 79 F.3d 92, 94 (8th Cir.1996). Under the first inquiry, the court concludes that if the modified affidavit was insufficient to establish probable cause to search, a constitutional violation sufficient to support Hunter’s section 1983 claim has been established. This is clearly incorrect. In reaching this conclusion, the court cites only precedent involving the suppression of evidence in criminal prosecutions— not section 1983 qualified immunity cases. See ante at 829-30 (citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); United States v. Reivich, 793 F.2d 957 (8th Cir.1986) and United States v. Dennis, 625 F.2d 782 (8th Cir.1980) (citations omitted)). This is error. These suppression cases are of value in determining a police officer’s duties. However, the search of a residence through use of a warrant issued without probable cause does not mean that the resident has established a constitutional violation sufficient to support a section 1983 claim against the police officer who attempted to supply the probable cause necessary to obtain the warrant. Following Franks, the plaintiff, in an official immunity case, must prove (1) that an affiant, in applying for a warrant, knowingly and deliberately, or with reckless disregard for the truth, made false statements or omissions that created a substantial falsehood, and (2) that such statements or omissions were material and necessary to the finding of probable" }, { "docid": "101460", "title": "", "text": "determining whether a reasonable officer would have understood that his conduct violated the asserted right. Id. at 202, 121 S.Ct. 2151. “[T]he answer to both Saucier questions must be in the affirmative in order for a plaintiff to defeat a defendant police officer’s motion for summary judgment on qualified immunity grounds.” Clem v. Corbeau, 284 F.3d 543, 549 (4th Cir.2002). A. We turn first to the initial Saucier question: whether, taking the facts “in the light most favorable” to Plaintiff Miller, “the facts alleged show” that Det. Dougans’s “conduct violated a constitutional right.” Saucier, 533 U.S. at 201, 121 S.Ct. 2151. Plaintiff maintains that the facts outlined above, considered in the light most favorable to him, allege a claim that he was seized without probable cause in violation of his Fourth Amendment rights. Unquestionably, “[t]he Fourth Amendment prohibits law enforcement officers from making unreasonable seizures, and seizure of an individual effected without probable cause is unreasonable.” Brooks v. City of Winston-Salem, 85 F.3d 178, 183 (4th Cir.1996); see Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Plaintiff acknowledges that he was arrested pursuant to a warrant, but claims that the warrant was not supported by probable cause. A plaintiffs allegations that police seized him “pursuant to legal process that was not supported by probable cause and that the criminal proceedings terminated in his favor are sufficient to state a ... claim alleging a seizure that was violative of the Fourth Amendment.” Brooks, 85 F.3d at 183-84. Plaintiff Miller alleges here that his seizure was unreasonable because it followed from a warrant affidavit that was deficient because it was dishonest. To succeed on his claim, Plaintiff must prove that Det. Dougans deliberately or with a “reckless disregard for the truth” made material false statements in his affidavit, Franks, 438 U.S. at 171, 98 S.Ct. 2674, or omitted from that affidavit “material facts with the intent to make, or with reckless disregard of whether they thereby made, the affidavit misleading.” United States v. Colkley," } ]

[ { "docid": "22655568", "title": "", "text": "are not mandatory, and thus the “range of choice dictated by the facts of the case” is significantly broadened. Moreover, the Guidelines are only one of the factors to consider when imposing sentence, and § 3553(a)(3) directs the judge to consider sentences other than imprisonment. We also note that the Government did not argue below, and has not argued here, that a sentence of probation could never be imposed for a crime identical to Gall’s. Indeed, it acknowledged that probation could be permissible if the record contained different — but in our view, no more compelling — mitigating evidence. Tr. of Oral Arg. 37-38 (stating that probation could be an appropriate sentence, given the exact same offense, if “there are compelling family circumstances where individuals will be very badly hurt in the defendant’s family if no one is available to take care of them”). The District Court quite reasonably attached great weight to Gall’s self-motivated rehabilitation, which was undertaken not at the direction of, or under supervision by, any court, but on his own initiative. This also lends strong support to the conclusion that imprisonment was not necessary to deter Gall from engaging in future criminal conduct or to protect the public from his future criminal acts. See 18 U. S. C. §§ 3553(a)(2)(B), (C). The Court of Appeals clearly disagreed with the District Judge’s conclusion that consideration of the § 3553(a) factors justified a sentence of probation; it believed that the circumstances presented here were insufficient to sustain such a marked deviation from the Guidelines range. But it is not for the Court of Appeals to decide de novo whether the justification for a variance is sufficient or the sentence reasonable. On abuse-of-discretion review, the Court of Appeals should have given due deference to the District Court’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. Ecstasy is sometimes called “MDMA” because its scientific name is “methylenedioxymethamphetamine.” App. 24, 118. Notably, not all of the Guidelines are tied to" } ]

[ { "docid": "22773930", "title": "", "text": "raised in the revocation sentencing colloquy, here especially noting the invalid urine samples. Warren also does not show that the district court relied on materially erroneous information in pronouncing sentence. We find no procedural error in Warren’s revocation sentence. II. Substantive Unreasonableness The district court sentenced Warren to the statutory maximum of twenty-four months, ten months above the upper end of the eight-to-fourteen month range recommended by the policy statement at U.S.S.G. § 7B1.4(a). We review a preserved objection to a sentence’s substantive reasonableness for an abuse of discretion, examining the totality of the circumstances. United States v. Fraga, 704 F.3d 432, 439-40 (5th Cir.2013); see Miller, 634 F.3d at 843. “The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (internal quotation marks omitted). Our deferential review is informed by the knowledge that “[t]he sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court.” Id. at 51-52, 128 S.Ct. 586 (internal quotation marks omitted). A sentence is substantively unreasonable if it “(1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors.” United States v. Peltier, 505 F.3d 389, 392 (5th Cir.2007) (internal quotation marks omitted). Warren argues his sentence is substantively unreasonable because the district court gave no weight to the § 7B1.4 recommended sentencing range, and rested its sentence in part on the unfounded assumptions that Warren’s drug use was not the product of addiction and that Warren was not intelligent, motivated, or cooperative. At sentencing, Warren objected that his sentence was above the guidelines range, but he made no objection on the specific grounds he now raises. Our review, therefore, is for plain error. See Hernandez-Martinez, 485 F.3d at 272 (“Hernandez is incorrect that simply asking" }, { "docid": "23694034", "title": "", "text": "445 (2007). “We presume that a sentence within a properly calculated guidelines range is reasonable, but there is no corresponding presumption of unreasonableness for a non-guidelines sentence.” United States v. Reyes-Hernandez, 624 F.3d 405, 409 (7th Cir.2010) (internal quotation marks omitted). Moreover, “we review de novo a district court’s interpretation of the guidelines.” Id. (citing United States v. Diekemper, 604 F.3d 345, 355 (7th Cir.2010)). Our review of sentencing decisions proceeds through a two-step inquiry. United States v. Moreno-Padilla, 602 F.3d 802, 810 (7th Cir.2010). First, “we ensure that the district court did not commit any significant procedural error, examples of which include failing to calculate, or improperly calculating, the applicable Guidelines range; treating the Guidelines as mandatory; or failing to consider the 18 U.S.C. § 3553(a) factors.” Id. (internal quotation marks omitted). Second, “if we determine there was no procedural error, we then examine ‘the substantive reasonableness of the sentence’ itself.” Reyes-Hernandez, 624 F.3d at 409 (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). A. Procedural Error A sentencing proceeding should begin with a calculation of the applicable guidelines, Gall, 552 U.S. at 49, 128 S.Ct. 586, and Lucas concedes that the district court correctly calculated the applicable guidelines sentence of 84 months under U.S.S.G. § 2K2.4. Nevertheless, Lucas argues that the district court committed a number of procedural errors before ultimately imposing a sentence of 210 months’ imprisonment. Lucas presents three challenges to the district court’s application of the Sentencing Guidelines. First, Lucas argues that the district court impermissibly calculated what the applicable guidelines would have been for the dismissed count of attempted kidnapping. Although the district court was free to consider this conduct, Lucas asserts that the court went too far because he was essentially sentenced as though he pled guilty to attempted kidnapping, despite the charge having been dismissed pursuant to the plea agreement. This, he claims, disregards the terms of U.S.S.G. § 2K2.4 by imposing a cross-reference provision not contained within the sentencing guidelines. Thus, Lucas argues that although the district court is free to punish a defendant more severely on the basis of" }, { "docid": "22647393", "title": "", "text": "See 18 U.S.C. § 201(b)(2). The district court considered the 18 U.S.C. § 3553(a) factors and concluded that a guidelines sentence satisfied those factors. The district court sentenced Ruiz to 168 months of imprisonment and three years of supervised release. Ruiz timely appealed. II. Because Ruiz was sentenced 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), this court reviews his sentence for reasonableness in light of the factors set forth in § 3553(a). See United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005). A district court must consider all facts relevant to sentencing in the same manner as before Booker in determining the advisory guidelines range. United States v. Alonzo, 435 F.3d 551, 553 (5th Cir.2006). This court must determine whether the sentence imposed is procedurally sound and substantively reasonable. Gall v. United States, 552 U.S. 38, 48-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). A sentence is procedurally sound if “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 — including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. This court reviews a district court’s application of the guidelines de novo and its factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir .2008). A presumption of reasonableness applies to sentences that fall within the guidelines. Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009). Any challenge to that presumption is foreclosed by United States v. Mondragon-Santiago, 564 F.3d 357, 367 & n. 7 (5th Cir.), cert. denied, — U.S.-, 130 S.Ct. 192, 175 L.Ed.2d 120 (2009). A. Ruiz argues that the district court procedurally erred when it applied the cross-reference provision in § 2Cl.l(c) to determine his" }, { "docid": "11616388", "title": "", "text": "a criminal history category of four, which establishes a guideline range of 57 to 71.” However, because the statutory maximum sentence was twenty-four months, the district court sentenced Fuentes to twenty-four months of incarceration. Furthermore, the district court noted that “[e]ven if the departure is later found to have been in error, the Court would have imposed the same sentence pursuant [to 18 U.S.C. § 3553(a)], due to the characteristics and background of the defendant.” The district court further noted that it “considered the guidelines and [found] that a sentence outside of those guidelines is consistent with and takes into account the purposes of [18 U.S.C. § 3553(a)].” Fuentes objected because “the sentence is greater than necessary and ... the charge is not ... the proper basis for a departure upward.” The district court overruled Fuentes’s objection. Fuentes filed a timely appeal. II. STANDARD OF REVIEW “We review the reasonableness of a sentence for abuse of discretion, whether it is inside or outside the guidelines range.” United States v. Hernandez, 633 F.3d 370, 375 (5th Cir.2011) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). First, we consider “whether the district court committed a significant procedural error, such as failing to calculate or incorrectly calculating the Guidelines range, treating the Guidelines as mandatory, or failing to consider the Section 3553 sentencing factors.” United States v. Simmons, 568 F.3d 564, 566 (5th Cir.2009) (citing Gall, 552 U.S. at 51, 128 S.Ct. 586). Furthermore, we are to determine if the district court relied on “clearly erroneous facts.” Gall, 552 U.S. at 51, 128 S.Ct. 586. In order to determine if there was a significant procedural error, “we review the district court’s interpretation or application of the sentencing guidelines de novo, and its factual findings for clear error.” United States v. Scott, 654 F.3d 552, 555 (5th Cir.2011) (internal citation and quotation marks omitted). “[I]f the district court’s decision is procedurally sound, we consider the substantive reasonableness of the sentence, considering the factors in 18 U.S.C. § 3553(a).” United States v. Gutierrez-Hernandez, 581 F.3d 251, 254" }, { "docid": "6562243", "title": "", "text": "PER CURIAM: Defendant-Appellant Andre McDaniels appeals the sentences imposed following his guilty-plea conviction on nine counts of tampering with a witness by corrupt persuasion. The district court sentenced him to 78 months of imprisonment on each count, with those sentences to run concurrently with each other but consecutively to federal sentences that McDaniels was already serving following prior convictions on charges of coercion and enticement. McDaniels argues that the sentences imposed by the district court were substantively unreasonable because the district court did not afford adequate weight to the applicable guidelines range — U.S.S.G. § 5G1.3 in particular — in its balancing of the 18 U.S.C. § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 50-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). He did not object on this basis in the district court, however, so plain error review applies. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.2007). McDaniels does not attempt to show that the alleged error either “affected [his] substantial rights” or “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings,” however, so he cannot establish reversible plain error. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal quotation marks and citations omitted); see also United States v. Williams, 620 F.3d 483, 496 (5th Cir.2010). 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." }, { "docid": "927596", "title": "", "text": "that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Rosales-Mireles’s 78-month sentence is within-guidelines, as it is within the overlap of the correct (70-87 months) and incorrect (77-96 months) ranges. It is therefore presumed reasonable. Id. Rosales-Mireles has not rebutted the presumption. He maintains that the district court placed too much weight on his old, prior convictions. But the court considered that argument during sentencing and rejected it. The -court explicitly considered a number of the § 3553(a) factors, including the nature of the offense; Rosales-Mireles’s history and characteristics; and the need to protect the public, deter future criminal conduct, and promote respect for the law. In addition, the court noted that this was Rosales-Mireles’s second conviction for being in the United States illegally, that he had used multiple aliases to remain in the United States, and that he had a history of assault stretching from 2001 to 2015. The district court was in the best position to evaluate Rosales-Mireles’s history and characteristics and the need for the sentence to further the objectives in § 3553(a). See Gall v. United States, 552 U.S. 38, 51-52, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Accordingly, the decision is entitled to deference. Id. Rosales-Mireles has not rebutted the presumption of reasonableness. The judgment of sentence is AFFIRMED. . United States v. Espinoza, 677 F.3d 730, 736 (5th Cir. 2012). See also United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010), abrogated on other grounds by Molina-Martinez v. United States, - U.S. -, 136 S.Ct. 1338, 194 L.Ed.2d 444 (2016) (\"As our conclusion is reached by a straightforward application of the guidelines, the error was also plain.”). . United States v. Martinez-Rodriguez, 821 F.3d 659, 663-64 (5th Cir. 2016) (quoting United States v. Pratt, 728 F.3d 463, 481 (5th Cir. 2013) (citation omitted)). . United States v. Miller, 657 Fed.Appx. 265, 270 (5th Cir. 2016) (per curiam). See also United States v. Mudekunye," }, { "docid": "4247870", "title": "", "text": "on all four counts. The district court originally sentenced him to 60 months imprisonment on each of counts 1-3, conspiracy to smuggle and smuggling illegal aliens; and 125 months on count 4, being an alien found in the United States after deportation following a felony conviction. The terms of imprisonment were to be served concurrently, and to be followed by a three-year term of. supervised release on each count, also to run concurrently. Moreno-Hernandez appealed to this court, and we, in an unpublished opinion, affirmed his conviction but vacated his sentence and remanded his case to the district court for resentencing. United States v. Moreno-Hernandez, No. 92-50573, 1993 WL 280391 (9th Cir. July 26, 1993). We noted that, although Moreno-Hernandez had been deported after convictions for two aggravated felonies involving trafficking in narcotics, and thus could have been charged with violating 8 U.S.C. § 1326(b)(2), the indictment actually charged him only with violating 8 U.S.C. § 1326,. with no reference to any subsection. He stipulated at trial only to deportation following a felony conviction, the government did not prove that felony was an aggravated felony, and the jury was not instructed on the added element of aggravation. In these circumstances, we concluded Moreno-Hernandez was convicted under section 1326(b)(1), reentry after deportation for committing a simple felony, and he could not be sentenced for a violation of that statute to a term of imprisonment in excess of that statute’s five-year maximum. On remand, the district court resentenced Moreno-Hernandez to 60 months imprisonment for the violation of 8 U.S.C. § 1326(b)(1) — count 4 — but, based on guidelines §§ 2L1.2(b)(2) and 5G1.2(d) (Nov. 1991), ordered his sentence on that count to be served consecutively to, rather than concurrently with, the 60-month concurrent sentences imposed on counts 1-3. The total restructured period of incarceration was 120 months — a term substantially similar to the 125-month sentence we vacated on the first appeal. STANDARD OF REVIEW We review de novo the legality of á criminal sentence, as well as a district court’s interpretation of the Sentencing Guidelines. United States v. Gnzman-Bruno, 27 F.3d" }, { "docid": "22601932", "title": "", "text": "thoroughly explain Whitelaw’s sentence. The factual basis supporting them is implicit in the district court’s findings that most of the revocation charges were true. By reviewing the record of the sentencing proceedings in this case, we are able to conduct a meaningful appellate review. Accordingly, the district court’s failure to state these reasons on the record has not prejudiced Whitelaw. Neither does the district court’s error “seriously affect the fairness, integrity, or public reputation of judicial proceedings.” We see no indication the district court considered any impermissible factor when sentencing Whitelaw. The government’s arguments for an above range sentence related to several factors listed in § 3553(a), including the ñatee and circumstances of Whitelaw’s offense, his criminal history, the need for punishment to deter criminal conduct and the need to protect the public. Also, there is no indication that the district court would impose a lighter sentence on remand and the rec ord was more than sufficient for us to assess the reasons and reasonableness of Whitelaw’s sentence. See United States v. Vigil, 2009 U.S.App. LEXIS 14385, 2009 WL 1863400, — Fed.Appx. - (10th Cir. June 30, 2009) (applying this record review approach to a guidelines sentence). Although the district court plainly erred by failing to state the reasons for imposing an above guideline sentence, Whitelaw has not met his burden of establishing that the error affected his substantial rights or that the error affected the public reputation of judicial proceedings, either here or in the district court. V. Whitelaw argues finally that the sentence was substantively unreasonable because it was far greater than the advisory guidelines sentence range and was outside of the range of reasonable sentences. Whitelaw’s conviction was for bank fraud, which carries a maximum sentence of 30 years of imprisonment and is a Class B felony. See R. 1, 3; 18 U.S.C. §§ 1344, 3559(a)(2). Based on these facts, the statutory maximum sentence on revocation was 36 months of imprisonment and his guideline range was 4 to 10 months of imprisonment. Whitelaw’s sentence of 36 months did not exceed the statutory maximum. See 18 U.S.C. §" }, { "docid": "23694033", "title": "", "text": "firearms. The court also found that under U.S.S.G. § 5K2.0, there were existing aggravating factors of a kind and to a degree not adequately taken into consideration because relevant conduct — the dismissed attempted kidnapping charge — was not otherwise considered in the guidelines sentence of seven years. Finally, the court imposed a 210-month sentence, followed by a five-year term of supervised release. The court found that the sentence would serve to hold Lucas accountable, serve as a deterrent, protect the community, provide the opportunity for rehabilitative programs, and achieve parity with sentences of similarly situated offenders. Lucas appeals his sentence, arguing that the district court committed a host of errors at sentencing and that the 210-month sentence was substantively unreasonable. We take each of these arguments in turn. II. Analysis On appeal, we review a district court’s sentence for reasonableness, United States v. Booker, 543 U.S. 220, 260-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), under an abuse of discretion standard, Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “We presume that a sentence within a properly calculated guidelines range is reasonable, but there is no corresponding presumption of unreasonableness for a non-guidelines sentence.” United States v. Reyes-Hernandez, 624 F.3d 405, 409 (7th Cir.2010) (internal quotation marks omitted). Moreover, “we review de novo a district court’s interpretation of the guidelines.” Id. (citing United States v. Diekemper, 604 F.3d 345, 355 (7th Cir.2010)). Our review of sentencing decisions proceeds through a two-step inquiry. United States v. Moreno-Padilla, 602 F.3d 802, 810 (7th Cir.2010). First, “we ensure that the district court did not commit any significant procedural error, examples of which include failing to calculate, or improperly calculating, the applicable Guidelines range; treating the Guidelines as mandatory; or failing to consider the 18 U.S.C. § 3553(a) factors.” Id. (internal quotation marks omitted). Second, “if we determine there was no procedural error, we then examine ‘the substantive reasonableness of the sentence’ itself.” Reyes-Hernandez, 624 F.3d at 409 (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). A. Procedural Error A sentencing proceeding should begin with" }, { "docid": "22773931", "title": "", "text": "individual case and the individual defendant before him than the Commission or the appeals court.” Id. at 51-52, 128 S.Ct. 586 (internal quotation marks omitted). A sentence is substantively unreasonable if it “(1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors.” United States v. Peltier, 505 F.3d 389, 392 (5th Cir.2007) (internal quotation marks omitted). Warren argues his sentence is substantively unreasonable because the district court gave no weight to the § 7B1.4 recommended sentencing range, and rested its sentence in part on the unfounded assumptions that Warren’s drug use was not the product of addiction and that Warren was not intelligent, motivated, or cooperative. At sentencing, Warren objected that his sentence was above the guidelines range, but he made no objection on the specific grounds he now raises. Our review, therefore, is for plain error. See Hernandez-Martinez, 485 F.3d at 272 (“Hernandez is incorrect that simply asking the court to sentence him within the Guidelines preserves an argument of specific legal error.”). ‘We have routinely affirmed revocation sentences exceeding the advisory range, even where the sentence equals the statutory maximum.” United States v. Casey, 340 Fed.Appx. 199, 200 (5th Cir.2009) (unpublished); see United States v. Whitelaw, 580 F.3d 256, 265 (5th Cir.2009) (holding it was not plain error for the district court to sentence the defendant to a thirty-six-month, statutory-maximum sentence on revocation of supervised release, despite a § 7B1.4 range of four to ten months); United States v. Jones, 484 F.3d 783, 792-93 (5th Cir.2007) (holding same for a statutory-maximum, twenty-four-month sentence when the recommended range was between six and twelve months, but vacating and remanding for clarification on separate grounds); Mathena, 23 F.3d at 89, 93-94 (finding the defendant’s revocation sentence, at a statutory-maximum, thirty-six months, was not plainly unreasonable where the applicable § 7B1.4 range was between six and twelve months). Warren does not persuade us his case warrants a different result. The district court did not make explicit" }, { "docid": "4247871", "title": "", "text": "government did not prove that felony was an aggravated felony, and the jury was not instructed on the added element of aggravation. In these circumstances, we concluded Moreno-Hernandez was convicted under section 1326(b)(1), reentry after deportation for committing a simple felony, and he could not be sentenced for a violation of that statute to a term of imprisonment in excess of that statute’s five-year maximum. On remand, the district court resentenced Moreno-Hernandez to 60 months imprisonment for the violation of 8 U.S.C. § 1326(b)(1) — count 4 — but, based on guidelines §§ 2L1.2(b)(2) and 5G1.2(d) (Nov. 1991), ordered his sentence on that count to be served consecutively to, rather than concurrently with, the 60-month concurrent sentences imposed on counts 1-3. The total restructured period of incarceration was 120 months — a term substantially similar to the 125-month sentence we vacated on the first appeal. STANDARD OF REVIEW We review de novo the legality of á criminal sentence, as well as a district court’s interpretation of the Sentencing Guidelines. United States v. Gnzman-Bruno, 27 F.3d 420, 422 (9th Cir.), cert. denied, — U.S. -, 115 S.Ct. 451, 130 L.Ed.2d 360 (1994); United States v. Buenrostro-Torres, 24 F.3d 1173, 1174 (9th Cir.1994), DISCUSSION A. Sentence Enhancement under § 2L1.2(b)(2) Moreno-Hernandez contends the district court erred when it increased his offense level on count 4 pursuant to § 2L1.2(b)(2) of the guidelines, and . sentenced him on that count to the five-year maximum provided by 8 U.S.C. § 1326(b)(1). He argues this was impermissible because the court accomplished indirectly by use of the guidelines what we prohibited in our prior decision. We disagree. In our unpublished memorandum disposition in Moreno-Hernandez’s first appeal, we decided only that, pursuant to óur decisions in United States v. Gonzalez-Medina, 976 F.2d 570 (9th Cir.1992), and United States v. Campos-Martinez, 976 F.2d 589 (9th Cir. 1992), he had not been convicted on count 4 of violating section 1326(b)(2)' because the government had not proved at trial a necessary element of that offense — namely, that he reentered the United States after deportation for commission of an aggravated" }, { "docid": "3428876", "title": "", "text": "EDITH H. JONES, Chief Judge: Miguel Chavez-Hernandez pleaded guilty, pursuant to a plea agreement, to being illegally present in the United States after being deported, pursuant to 8 U.S.C. § 1326. Over Chavez-Hernandez’s perfunctory objection, the district court increased his base offense level of eight by 16 levels, pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii), on the theory that his 2009 conviction for sexual activity with a minor in violation of Florida Statute § 794.05 was a “crime of violence.” Chavez-Hernandez’s criminal history category was II. The district court granted a three-level reduction for acceptance of responsibility and a further reduction sua sponte because the court concluded that his criminal history was over-represented. This resulted in an advisory sentencing guidelines range of 37 to 46 months of imprisonment. U.S.S.G. Ch. 5, Pt. A, Sen tencing Table. The district court sentenced Chavez-Hernandez to 37 months in prison and two years of supervised release. Chavez-Hernandez filed a timely appeal. Because he did not adequately preserve his objection to the sentence, plain error review applies. Although “plain error” occurred, we are not compelled to reverse under the circumstances here presented. Sentence affirmed. 1. Standard of Review When an error is preserved by specific objection in the trial court, this court reviews the district court’s findings of fact for clear error and its application of the federal sentencing guidelines de novo. United States v. Gharbi 510 F.3d 550, 554 (5th Cir.2007). Accordingly, we review the district court’s characterization of a defendant’s prior conviction de novo. United States v. Balderas-Rubio, 499 F.3d 470, 472 (5th Cir.2007), cert. denied, 552 U.S. 1215, 128 S.Ct. 1304, 170 L.Ed.2d 123 (2008). If, however, the defendant has failed to make his objection to the guidelines calculation sufficiently clear, the issue is considered forfeited, and we review only for plain error. Fed. R. Crim. P. 52(b); United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir.2009); United States v. Hernandez-Martinez, 485 F.3d 270, 272 (2007); United States v. Lopez, 923 F.2d 47, 50 (5th Cir.1991). Plain error review requires four determinations: whether there was error at all; whether it was plain or" }, { "docid": "22870066", "title": "", "text": "A,” which includes general provisions that deal with sentencing). In contrast, the statutory maximum penalty for a supervised release revocation is generally lower because 18 U.S.C. § 3583(e)(3) significantly limits the sentences that a district court may im pose. Kippers’ assertion that this court should more closely scrutinize sentences imposed on revocation of probation lacks support and contradicts this court’s holding in Miller and earlier case law. Section 3742(a)(4) clearly applies to this case, and under Miller, the plainly unreasonable standard, articulated by § 3742(a)(4) and our pre-Booker precedents, persists beyond Booker. See 634 F.3d at 842-43. To evaluate whether a sentence is plainly unreasonable, this court “must first ensure that the district court committed no significant procedural error,” such as failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence, including failing to explain a deviation from the Guidelines range. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169. L.Ed.2d 445 (2007). If the district court’s sentencing decision lacks procedural error, this court next considers the substantive reasonableness of the sentence imposed. Id. On appeal, Kippers (1) asserts that the district court committed procedural error and (2) attacks the sentence imposed on revocation for its substantive reasonableness. A Kippers contends that the district court committed a procedural error because it based his sentence on inadequate and improper reasons and failed to consider his mental illness. Because Kippers objected only generally to the reasonableness of his sentence, we review Kippers’ claimed procedural error for plain error. See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir.2009) (explaining that plain error review applied on appeal where defendant failed to raise any of the specific claims of procedural error before the district court). To show plain error, Kippers must show an error that is clear or obvious and that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009); United States v. Davis, 602 F.3d 643, 647 (5th Cir.2010) (explaining that in the sentencing context," }, { "docid": "19532405", "title": "", "text": "the goals of sentencing, which include promoting respect for the law, punishment, deterrence, and protection of the public. 18 U.S.C. § 3553(a), (a)(2). It supplies seven factors the court must consider in carrying out this task. Id. § 3553(a)(1)-(7). These include accounting for the circumstances of the offense charged, the defendant's criminal history, the need for deterrence and public protection, the Guidelines range, and the desire to avoid unwarranted sentence disparities among similarly situated defendants. Id. We use a two-step process to review Judge Bucklo's sentencing determination. First, \"we determine whether the district court committed any 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-including an explanation for any deviation from the Guidelines range.' \" United States v. Reyes-Hernandez , 624 F.3d 405, 409 (7th Cir. 2010) (quoting Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ). Review for procedural errors is de novo . UnitedStates v. Rivera , 847 F.3d 847, 849 (7th Cir. 2017). If no procedural error is found, then the sentence is reviewed for substantive reasonableness. Reyes-Hernandez , 624 F.3d at 409. A sentence is substantively unreasonable only when the district court abused its discretion in imposing the sentence in question. Gall , 552 U.S. at 51, 128 S.Ct. 586. \"We presume that a sentence within a properly calculated Guidelines range is reasonable, but there is no corresponding presumption of unreasonableness for a non-Guidelines sentence.\" Reyes-Hernandez , 624 F.3d at 409 (quotation omitted). Above-Guidelines sentences will be upheld if the district court offered an adequate statement of reasoning therefor, consistent with the Section 3553(a) factors. United States v. Lewis , 842 F.3d 467, 477 (7th Cir. 2016). The appellate court must determine whether the justification offered comports with the degree of variance from the Guidelines. Id. at 477-78. This assessment accounts for the sentencing judge's \"superior position to find facts and judge their import under section" }, { "docid": "22644451", "title": "", "text": "a bifurcated review. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008). First, we ensure that the sentencing 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 [18 U.S.C.] § 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. If the sentencing decision is procedurally sound, we then consider the “substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. If a defendant fails to properly object to an alleged error at sentencing, however, the procedural reasonableness of his sentence is reviewed for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.2009). “The standard ... shields this court from ruling on issues that have been insufficiently vetted below.” United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir.2012). Objections must be raised to place the district court on notice about potential issues for appeal, and to give the district court an opportunity to “clarif[y] or, if necessary, correct[ ] itself.” United States v. Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir.2007); see also United States v. Rodriguez, 15 F.3d 408, 414 (5th Cir.1994) (“A party must raise a claim of error with the district court in such a manner so that the district court may correct itself and thus, obviate the need for our review.”). Therefore, objections that are too vague are reviewed on appeal for plain error because they cannot “alert the court to the legal argument [the party] now presents.” Hernandez-Martinez, 485 F.3d at 272. Dominguez-Alvarado failed to raise his claim of error in a manner that could have placed the district court on notice of the error he now asserts. On appeal, he argues that because the Guidelines state that a term of supervised release “ordinarily” should not be imposed, the" }, { "docid": "15399424", "title": "", "text": "report assigned Hernandez a base offense level of eight pursuant to U.S.S.G. § 2L1.2(a). Sixteen levels were added pursuant to § 2L1.2(b)(1)(A)(ii) based on Hernandez’s prior North Carolina conviction for attempted common-law robbery. After receiving a three-level reduction pursuant to U.S.S.G. § 3E1.1 for acceptance of responsibility, Hernandez had a total offense level of 21. Hernandez scored a total of nine criminal history points and was placed in Criminal History Category IV. Thus, the report concluded that Hernandez’s advisory sentencing range under the Guidelines should be 57 to 71 months. U.S.S.G. Ch. 5, Pt. A. Hernandez objected to the report, in pertinent part, on the grounds that the 16-level enhancement pursuant to § 2L1.2(b)(1)(A)(ii) was not warranted because his North Carolina conviction for attempted common-law robbery did not meet the Guidelines’s definition of a “crime of violence.” The district court overruled Hernandez’s objection. In addition, the district court found by a preponderance of the evidence that Hernandez had committed the offenses that he had been acquitted of at trial. The district court sentenced Hernandez to an above-Guidelines sentence of 84 months of imprisonment, as well as a three-year term of supervised release. This appeal followed. II. In reviewing the reasonableness of a defendant’s sentence, we “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). The district court’s “interpretation or application of the Sentencing Guidelines” is reviewed de novo, while its factual findings are reviewed for clear error. Id. Thus, this court considers de novo whether a defendant’s prior conviction qualifies as a “crime of violence” within the meaning of the Guidelines. United States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5th Cir.2006). A defendant convicted of illegal reentry who also has a prior conviction for a “crime of violence” receives a 16-level upward adjustment under the Guidelines. U.S.S.G. § 2L1.2(b)(1)(A)(ii). “Crime of violence” is defined in the application notes: “Crime of" }, { "docid": "19991101", "title": "", "text": "review [a] sentence under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Our court “must first ensure that the district court committed no significant procedural error, such as ... failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. If the sentence is procedurally sound, we “then consider the substantive reasonableness of the sentence imposed.” Id. at -, 128 S.Ct. at 597. Procedurally, a sentencing court should first accurately calculate a defendant’s sentencing Guidelines range and provide each party an opportunity to explain their desired sentence. See id. at -, 128 S.Ct. at 596. The district court-must then consider each of the § 3553(a) factors and conduct an individualized assessment to determine what sentence is appropriate given the facts in the particular case. Id. at-, 128 S.Ct. at 596-97. “In explaining the chosen sentence and analyzing the relevant § 3553(a) factors, ‘a district court is not required to provide a full opinion in every case, but must set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.’ ” United States v. Hill, 552 F.3d 686, 691 (8th Cir.2009) (quoting United States v. Robinson, 516 F.3d 716, 718 (8th Cir.2008)) (internal marks omitted). The district court accurately calculated Hernandez’s Guidelines range and provided Hernandez with the opportunity to argue for his desired sentence. Based upon Hernandez’s offense level of 32 and criminal history category III, Hernandez’s Guideline range was 151 to 188 months imprisonment. The court then considered the § 3553(a) factors and determined, based upon the facts before it, that a sentence at the bottom of the Guidelines range, 151 months, was appropriate. “Where, as here, the sentence imposed is within the advisory guideline range, we accord it a presumption of reasonableness.” United States v. Harris, 493 F.3d 928, 932 (8th Cir.2007) (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462-63, 168 L.Ed.2d 203 (2007); United" }, { "docid": "22722245", "title": "", "text": "we decline to extend these precedents to cases such as this one, where the sentencing factor is based on circumstances of the crime itself. Substantive offense-based enhancements are inseparable from the underlying offense and must be considered in determining the maximum available sentence. We therefore agree with the district court that Defendanb-Appellant Isidro Moreno-Hernandez’s underlying Oregon conviction was, as far as this consideration goes, for a “felony.” As Moreno-Hernandez challenges the applicability of a federal sentencing enhancement, however, we grant a limited remand pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). 1. Background This appeal comes to us from Moreno-Hernandez’s third conviction for illegally reentering the United States after removal. See 8 U.S.C. § 1326. All three federal convictions occurred subsequent to a 1999 Oregon state conviction for assault in the fourth degree, for “unlawfully and intentionally caus[ing] physical injury” to Yolanda Robinson in the presence of her minor child, Deanndra Wright. For that offense, Moreno-Hernandez was sentenced to sixty days in jail and three years on probation. After pleading guilty to this most recent § 1326 charge, Moreno-Hernandez was sentenced to a term of seventy-seven months. Under the then-recently amended Guidelines, the district court enhanced Moreno-Hernandez’s sentence by sixteen levels, because he was deported, or unlawfully remained in the United States, after a conviction for a “felony that is ... a crime of violence.” U.S.S.G. § 2L1.2(b)(l)(A)(ii) (2003). From this sentence Moreno-Hernandez timely appeals. II. “Felony” The crux of Moreno-Hernandez’s argument is that we should not consider the factor that made his offense punishable by as much as a five-year sentence — the presence of the victim’s minor child — in ascertaining whether his underlying Oregon conviction was for a “felony.” Federal law and the Guidelines both define a felony as “any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” U.S.S.G. § 2L1.2, cmt. n. 2; see also 18 U.S.C. § 3559(a). This bright-line distinction between felonies and misdemeanors, which dates back, at least in some form, to 1865, see United States v. Graham, 169 F.3d 787, 792" }, { "docid": "22601933", "title": "", "text": "LEXIS 14385, 2009 WL 1863400, — Fed.Appx. - (10th Cir. June 30, 2009) (applying this record review approach to a guidelines sentence). Although the district court plainly erred by failing to state the reasons for imposing an above guideline sentence, Whitelaw has not met his burden of establishing that the error affected his substantial rights or that the error affected the public reputation of judicial proceedings, either here or in the district court. V. Whitelaw argues finally that the sentence was substantively unreasonable because it was far greater than the advisory guidelines sentence range and was outside of the range of reasonable sentences. Whitelaw’s conviction was for bank fraud, which carries a maximum sentence of 30 years of imprisonment and is a Class B felony. See R. 1, 3; 18 U.S.C. §§ 1344, 3559(a)(2). Based on these facts, the statutory maximum sentence on revocation was 36 months of imprisonment and his guideline range was 4 to 10 months of imprisonment. Whitelaw’s sentence of 36 months did not exceed the statutory maximum. See 18 U.S.C. § 3583(e)(3). Accordingly, the sentence imposed by the district court did not constitute plain error. See United States v. Jones, 484 F.3d 783, 792 (5th Cir.2007) (holding statutory maximum revocation sentence not to be plain error); United States v. Jones, 182 Fed. Appx. 343, 344 (5th Cir.2006) (noting that this court has “routinely upheld release revocation sentences in excess of the advisory range but within the statutory maximum.”); United States v. Smith, 253 Fed. Appx. 346 (5th Cir.2007) (holding statutory maximum revocation sentence not to be plain error). VI. For the foregoing reasons, Whitelaw’s sentence is affirmed. AFFIRMED. . The MTR listed the following reasons which justify that sentence: 1. Prior leniencies shown the Defendant. For three felony theft offenses, the Defendant was assessed a total of 60 years in prison, of which he served about 5. In his instant federal offense, despite his leadership role in inflicting fraud losses of almost $200,000, the Defendant was not required to pay any restitution. 2. Defendant's return to theft. During his supervised release, the Defendant perpetrated his crime" }, { "docid": "14879615", "title": "", "text": "quotation marks and alteration omitted). “Regardless of whether the sentence imposed is inside or outside the Guidelines range,” we are required to “review the sentence under an abuse-of-discretion standard.” Gall, 552 U.S. at 51, 128 S.Ct. 586. After correctly calculating the non-binding guideline range to be 100 to 125 months’ imprisonment, the district court granted a downward variance and imposed a below-guidelines sentence of 96 months. Although Espinoza-Baza contends that this term of imprisonment is still too high, we conclude from the totality of the circumstances that the district court did not abuse its discretion. See Blinkinsop, 606 F.3d at 1116. As the district court observed, Espinoza-Baza’s criminal history includes multiple drug-related offenses, an assault with a deadly weapon, a disturbing the peace violation, and a conviction for evading a peace officer. Given the severity and escalating nature of EspinozaBaza’s criminal behavior, the district court did not abuse its discretion when it concluded that a ninety-six month sentence was necessary to deter criminal conduct and to protect the public from further crime. See 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)”). We also disagree with EspinozaBaza’s contention that his below-guidelines sentence subjects him to an unwarranted sentencing disparity. Although Espinoza-Baza’s sentence is higher than the majority of defendants convicted of illegal reentry after deportation, this alone is insufficient to establish that his sentence is unreasonable. See 18 U.S.C. § 3553(a). It does not “matter for the purposes of § 3553(a) that [EspinozaBaza] can point to [other] criminal defendants] ... who may have received ... lighter sentence^]” under materially different circumstances. See United States v. Treadwell, 593 F.3d 990, 1012 (9th Cir.2010). There is nothing in the record suggesting that these other defendants had comparable criminal histories to Espinoza-Baza, that they were aggravated felons, or that they had illegally reentered the United States on multiple occasions. See id. Accordingly, under the circumstances of this case, we conclude that" } ]

[ { "docid": "21450492", "title": "", "text": "MORRIS, District Judge. In this action the plaintiffs seek relief against the defendant to enforce certain provisions in a contract of employment entered into between the parties on the third day of .September 1947, wherein the plaintiff agreed to employ the defendant at a salary of $80 per week, such employment to be terminable by either party upon notice in writing. Contained in said agreement are certain provisions wherein the defendant agreed not to disclose to any person, firm or corporation the name, address or requirements of customers of the company, nor to divulge any other information acquired during said period of employment, and further, upon the termination of employment, that he would surrender to the company all lists, books and records of, or in connection with, the company’s customers or business, and further “that he will not for a period of five years after the end or termination of his employment, irrespective of the time, manner or cause of the said termination directly or indirectly, either as principal, agent, employee, employer, stockholder, co-partner or in any other individual or representative capacity whatever, solicit, serve or cater to, or engage, assist, be interested in or connected with any other person, firm or corporation soliciting, serving or catering to any of the customers served by him, or by any other employee of the company, within a radius of thirty miles of any office or offices with which he has been directly connected.” The present matter before the Court is an application for a temporary injunction to restrain the defendant from violation of the agreements above set forth. A hearing was had, at which time substantial evidence was taken, and argument of counsel was had. Subsequently, at the request of the Court, briefs of counsel have been submitted. Certain facts have been definitely established: The plaintiffs, with their predecessors in interest, have been continuously in the business of pest extermination and control services since 1899, with their principal office in the City of Philadelphia, Pennsylvania, and with a branch office in the District of Columbia continuously since the year 1906. The defendant," } ]

[ { "docid": "22258338", "title": "", "text": "served. In its complaint, appellee denied that it had violated the Defense Production Act or any regulation or order under it. Appellee claimed also that the administrative procedure then being followed was unauthorized by the Constitution or any statute and that, even if originally authorized, that authorization had now expired. Finally, appellee claimed the hearing should be enjoined because the mere conduct of the proceeding would inflict irreparable damage upon it. A three-judge District Court, convened under 28 U. S. C. (1952 ed.) § 2282, granted the restraining order and interlocutory injunction sought by appellee against further conduct of the administrative proceeding. After hearing and trial, the injunction was made permanent. 114 F. Supp. 389. The order was then appealed to this Court under 28 U. S. C. (1952 ed.) § 1253. Stay of the injunction was denied, two Justices dissenting and one not participating. 345 U. S. 988. Probable jurisdiction of the appeal was noted. 346 U.S.920. A somewhat comparable case was decided by a three-judge United States District Court for the Northern District of Texas in favor of an employer June 14, 1953, in Jonco Aircraft Cory. v. Franklin, 114 F. Supp. 392, with Chief Circuit Judge Hutcheson dissenting. That judgment was reversed by this Court, -per curiam, for failure of appellee to exhaust its administrative remedy. 346 U. S. 868. I. We consider first the claim to injunctive relief which appellee made on the ground that the conduct of the proposed administrative hearings would cause it irreparable damage by weakening its bank credit and depriving it of essential working capital. On that basis, interlocutory relief was granted pending the court’s determination of the ultimate issue of the validity of the administrative procedure. That injunction has been made permanent but the Government, on behalf of appellants, contends that appellee is acting prematurely in seeking such relief before carrying the prescribed administrative procedure at least to the point where it faces some immediate compulsion and greater probability of damage than it has established. The proposed hearings are to be held before an Enforcement Commissioner with authority merely to recommend" }, { "docid": "7219652", "title": "", "text": "Homer E. Dean, Jr., one of appellant’s attorneys of record and also presented copies to the Judge of the State Trial Court. Shortly after the attorney for appellees left the court, it was suggested to the District Judge that a copy of the removal petition had not been filed in the office of the District Clerk for the 79th District Court, nor had the Honorable Woodrow Laughlin been requested to permit a copy of said petition for removal to be filed with him. Thereupon the district judge proceeded to hear evidence, and, upon the close thereof, the court entered its order of July 10th, granting a temporary injunction to appellant. Again, appellees were duly and properly served with a temporary injunction on July 11,1961, and their attorneys have never at any time attempted to discuss the matter in any way with appellant’s counsel, nor did they at any time prior to March 2, 1962, file a copy of said removal petition with the Clerk of the 79th District Court of Jim Wells County, Texas. Before the court convened on the 2nd day of March, 1962, appellees still not having made an appearance in the State Court by the filing of any answer or the filing with the clerk of the district court of a copy of the removal petition, appellant appeared before said court and took a non-suit as to its cause of action for money damages, and the State Court entered its judgment ordering a permanent injunction against appellees. After the entry of final judgment in the State Court, appellant specially appeared in the Federal District Court and filed a motion to dismiss the cause on the grounds that the matter was moot for the reason that it had been finally decided by a court of competent jurisdiction by the entry of a final judgment. The district judge, after a hearing on the 14th day of March, 1962, filed an opinion and entered an order accordingly, overruling appellant’s motion to dismiss and enjoining appellant from seeking to enforce the order and judgment of the 79th District Court of Jim" }, { "docid": "22907607", "title": "", "text": "PER CURIAM. This appeal involves one of several suits filed by one or both pro se appellants against the Federal Deposit Insurance Corporation (FDIC) after the FDIC did not renew appellants’ temporary appointments with the FDIC. In this case, appellants appeal an order dismissing with prejudice their complaint against the FDIC, and permanently enjoining them from filing additional pleadings in the instant case and from commencing future legal proceedings against the United States or the FDIC regarding the nonrenewal of their temporary appointments. Appellants additionally appeal the district court’s assessment of costs against them. We affirm the judgment of the district court. Background On August 28, 1978, appellant Eligió Castro became employed at the FDIC’s San Juan, Puerto Rico, Liquidation Office. Castro’s employment consisted of a series of successive, finite, temporary excepted appointments. His last appointment expired on November 10, 1982, and was not extended by the FDIC. Appellant Rafael Diaz Diaz also held a series of successive, finite, temporary excepted appointments with the FDIC’s San Juan Liquidation Office beginning on February 12, 1979. Diaz Diaz’s employment with the FDIC ended when his last appointment expired on December 10, 1982. Appellants subsequently filed a complaint and an amended complaint against the United States, the FDIC, and William Isaac, Chairman of the FDIC (appellees). Appellants’ central claims were that the FDIC’s refusal to renew appellants’ appointments violated their federal statutory and constitutional rights. Appellants’ requested relief included monetary relief and reinstatement in their former jobs. Appellants also filed a motion for a preliminary injunction seeking, among other things, reinstatement in their former jobs with the FDIC.. Appellants subsequently filed a motion for a temporary restraining order. The district court denied both motions. On January 23, 1984, appellees filed a motion to dismiss appellants’ amended complaint, and to enjoin appellants from relitigating any matters set forth in their complaint in this case, or in any previous case, concerning the nonrenewal of their appointments with the FDIC. On April 6, 1984, the district court issued an opinion and order concluding that it lacked subject matter jurisdiction as to some of appellants’ claims, and" }, { "docid": "17475118", "title": "", "text": "lack of mutuality and Martin’s being subject to any contract at the time he was terminated, in view of the probability that the employment contract came to an end when Martin was promoted to assistant national sales manager. With regard to the mutually agreed confidential commercial property, the court found that even with appellees’ admission of the confidential nature of certain items, there was no proof that they had appropriated, taken away or used any of this information. With respect to the remaining items alleged by Automated but not admitted by appellees to be confidential, the court found these items were not “customarily or ever included within the definition of a trade secret or confidential information.” The court also found there had been no misappropriations of trade secrets. The court observed that the information could be easily compiled due to the wide distribution of the after sales program and published statements about the program. In regard to the employment of one of Automated’s former employees, the trial court found that appellees had not employed Smith at the time of the hearing, and further found no immediate threat that Smith would be employed by Consumer Contact Corporation to solicit his former accounts. The trial court also noted in Automated’s annual report for 1970 that Automated had enjoyed a reasonably successful year despite vigorous competition and an economic downturn in the automobile industry. The report continued with the prospect that former customers who tried a competitor’s service would soon be won back. The court, quite correctly, interpreted this as evidence of Automated’s conclusion that the harm was not irreparable. The trial court, in denying the injunctive relief sought, concluded from the record that Automated had not shown a substantial probability of succeeding on the merits. The court further concluded that if customers had been obtained in violation of a restric tive covenant, if a valid covenant did exist, or by unfair competition, the.remedy of law will still give Automated adequate recourse. The trial judge’s findings of facts are supported by the evidence; the denial of injunctive relief was not error as a" }, { "docid": "6788639", "title": "", "text": "were local people, doubtless well known to the judge. He heard them testify and he set forth fully in his findings and the opinion the nature and ingredients of that relationship as he found them to be. The inferences he drew and the conclusion he reached from the human testimony, the exhibits, and the evidence of customs given by the witnesses included the weighing and assaying of testimony involving subtleties and intangibles which could best be done by one having the “feel” of the case which was possessed by the district judge. The Director’s evidence was sharply contra-dieted, and the trial court doubtless considered that major reliance was placed by the Director on the testimony of one or more witnesses who were embittered by the events attending a strike against appellee. Its decision on this fact question is invested with the presumption of correctness, which an examination of the record does not tempt us to set aside as clearly erroneous. The trial court’s decision on this fact question, treated by appellant throughout as being basic, virtually disposes of the claim that the injunction was not properly granted. Appellant did argue briefly that appellee was able to pay the exaction and sue for refund, relying to a considerable extent on the testimony of strongly biased witnesses to sustain this contention. The trial court’s findings are against appellant and they are clearly supported by the evidence. This Court has been diligent in protecting the public revenues against improvident injunctions. The last case coming to our attention is McDonald v. Phinney, 5 Cir., 1961, 285 F.2d 121. There we affirmed the action of a district judge in refusing to make permanent a temporary injunction which had been issued and in dismissing the complaint under § 7421. In that ease the tax involved had been reduced to judgment in the Tax Court on the basis of stipulation between the parties and, more than a year and a half later, the taxpayer filed his action for injunction on the ground that “he lacked sufficient funds to pay the sum alleged to be owing to the" }, { "docid": "9845169", "title": "", "text": "he wished to remain a sales representative he would have to give written assurance that he would support management and adhere to appellant’s business policies. Appellee responded to Poth in a memorandum dated December 23. Appellee failed to give the written assurance Poth requested; rather, he repeated his criticism of Bishop’s selling skills. On December 27 and 28, 1985, appellee’s deposition was taken in connection with two separate but related antitrust actions which had been commenced against appellant by two other sales representatives. At his deposition, appellee produced a tape recording of a telephone conversation he had had with another sales representative. The conversation made direct reference to the involvement of Bishop in what the two sales representatives (including appellee) regarded as illegal price-fixing activities. On January 21,1986, Poth wrote appellee a letter informing him of appellant’s decision to terminate his services as a sales representative. The letter told appellee that he was being fired because of his refusal to cooperate with management and his refusal to follow company policies and procedures. Poth sent this letter shortly after the transcripts of appellee’s deposition were made available. On January 27, 1986, appellee filed a complaint in the instant action in the district court alleging an antitrust claim, a breach of contract claim, and an illegal termination claim. With respect to the illegal termination claim, appellee alleged that appellant had fired him in retaliation for his having given adverse deposition testimony. By order to show cause, appellee moved for a temporary restraining order and a preliminary injunction enjoining appellant from interfering with appellee’s business as a sales representative. A hearing was held on February 7, 1986 before Judge Broderick. At the conclusion of the hearing, in an oral opinion from the bench, Judge Broderick granted appellee’s motion and ordered appellee’s immediate reinstatement. A formal order granting the preliminary injunction and denying a stay was entered February 11. On February 18, we entered a stay pending appeal from the preliminary injunction. II. For the issuance of a preliminary injunction in this Circuit, the moving party has the burden of showing: “(a) irreparable harm" }, { "docid": "21913095", "title": "", "text": "accordingly we reverse the award of attorney’s fees entered by the district court. I. FACTS The relevant facts are not in dispute. On May 8, 1979, the appellees filed a class action under 42 U.S.C.A. § 1983 seeking declaratory judgment that the rules governing the administration of the Medicaid program in Georgia, which limited state funding of abortions to those funded under the Hyde Amendment, were invalid under the Medicaid Act and the United States Constitution. The complaint also sought injunc-tive relief.' The following day, appellees argued a motion for a temporary restraining order before the district court. The court declined to enter a temporary restraining order, but received the consent of counsel for the appellants that the State would provide reimbursement for an abortion performed upon appellee Jane Doe pri- or to a hearing on a preliminary injunction if the district court were to award the preliminary injunction in favor of appellees at a subsequent date. After a hearing on the issue, the court, after concluding that Georgia law did not prohibit expenditure of Medicaid funds for abortions in cases where matching federal, funds were not available, granted appellees’ motion for a preliminary injunction enjoining appellants from refusing to provide Medicaid reimbursement for abortions for the named female appel-lees. Doe v. Busbee, 471 F.Supp. 1326 (N.D. Ga.1979). The district court subsequently certified the case as a class action. On December 12, 1979, the district court awarded summary judgment in favor of the appellees and entered both declaratory relief and a permanent injunction'requiring appellants to provide Medicaid reimbursement for all medically necessary abortions for eligible women in Georgia. During the time this injunction was in effect, approximately 1800 women received abortions funded by Medicaid in Georgia. Appellants appealed from this judgment to the Fifth Circuit. On January 14, 1980, appellees filed a motion to recover attorney’s fees, but before the district court ruled on the motion, the Supreme Court of the United States on June 30, 1980, decided Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), and Williams v. Zbaraz, 448 U.S. 358, 100 S.Ct." }, { "docid": "17530240", "title": "", "text": "HUTCHESON, Chief Judge. This is an appeal from an order of the United States District Court for the Northern District of Alabama, granting a petition for temporary injunction filed on behalf of the National Labor Relations Board by the Acting Regional Director, pursuant to the provisions of Sec. 10(i) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 141 et seq., particularly Sec. 160(1). The petition was predicated on charges filed with appellee by Perfection Mattress & Springs Co., alleging that appellants had engaged and were engaging in a secondary boycott proscribed by Section 8(b) (4) (A) of the Act. After investigation, appellee concluded that there was reasonable cause to believe that appellants had engaged and were engaging in the unfair labor practices charged and that complaint should issue. Accordingly he filed the petition for injunction and the appellants joined issue therewith. After a hearing, the court, filing findings of fact and conclusions of law, entered the order granting the temporary injunction appealed from. This enjoined and restrained defendants-appellants, pending the final disposition of the matters involved before the Board, from picketing the premises of Standard Furniture Co. and six other named companies by any means or by permitting any such to remain in existence or effect, engaging in or inducing or encouraging employees of said companies or any other employer to engage in a concerted refusal, in the course of their employment, to use, transport, or otherwise handle or work on any goods, articles or commodities or to perform any service where an object thereof is to force or require said companies or other employees or persons to cease doing business with Perfection. Appealing from the order, appellant, apparently disregarding the fact that the injunction is not final but temporary and that the merits of the complaint to be determined by the Board are not before us for decision and may not at this time be determined by us, states the questions presented and seeks to argue the case as though the matter was before us for decision on the merits. Appellee, on his part, thus presents" }, { "docid": "22537354", "title": "", "text": "preliminary injunction, the appellants appealed, and we noted probable jurisdiction, 417 U. S. 943 (1974). I Appellee, a resident of Michigan and licensed to practice medicine there, obtained a Wisconsin license in August 1971 under a reciprocity agreement between Michigan and Wisconsin governing medical licensing. His practice in Wisconsin consisted of performing abor tions at an office in Milwaukee. On June 20, 1973, the Board sent to appellee a notice that it would hold an investigative hearing on July 12,1973, under Wis. Stat. Ann. § 448.17 to determine whether he had engaged in certain proscribed acts. The hearing would be closed to the public, although appellee and his attorney could attend. They would not, however, be permitted to cross-examine witnesses. Based upon the evidence presented at the hearing, the Board would decide “whether to warn or reprimand if it finds such practice and whether to institute criminal action or action to revoke license if probable cause therefor exists under criminal or revocation statutes.” App. 14. On July 6, 1973, appellee filed his complaint in this action under 42 U. S. C. § 1983 seeking preliminary and permanent injunctive relief and a temporary restraining order preventing the Board from investigating him and from conducting the investigative hearing. The District Court denied the motion for a temporary restraining order. On July 12, 1973, appellants moved to dismiss the complaint. On the same day, appellee filed an amended complaint in which injunctive relief was sought on the ground that Wis. Stat. Ann. §§448.17 and 448.18 were unconstitutional and that appellants’ acts with respect to him violated his constitutional rights. The District Court again denied appellee’s motion for a temporary restraining order, but did not act upon appellants’ motion to dismiss. On July 30, 1973, appellants submitted an amended motion to dismiss. The Board proceeded with its investigative hearing on July 12 and 13, 1973; numerous witnesses testified and appellee’s counsel was present throughout the proceedings. Appellee’s counsel was subsequently informed that appellee could, if he wished, appear before the Board to explain any of the evidence which had been presented. App. 36-37. On" }, { "docid": "9904037", "title": "", "text": "KEITH, Circuit Judge. This case involves an appeal by Chrysler Corporation (“Chrysler”) from the district court’s grant of a preliminary injunction requiring it to reinstate plaintiff-appellee in employment status with back pay and to pay attorney’s fees and expenses incurred by plaintiff-appellee in prosecuting the preliminary injunction action. The jurisdiction of this court is invoked pursuant to 28 U.S.C. § 1292(a)(1). The record reveals that on July 2, 1973, plaintiff-appellee, Julia A. Nicodemus, brought a class action suit against Chrysler for sex discrimination in employment practices. After the conclusion of the first segment of a bifurcated trial at which evidence upon the liability issue was presented, the district court, in an opinion filed April 5, 1976, found Chrysler liable for sex discrimination in violation of Title VII and continued the case for trial of the issues relating to relief. On August 6, 1976, during the interim between the liability and the relief segments of the trial, plaintiff-appellee was discharged by Chrysler. Three days after termination of her employment, on August 9, 1976, plaintiff-appellee’s union filed a written grievance in her behalf. Four days later, on August 13, 1976, plaintiff-appellee filed a motion for a temporary restraining order and a motion for preliminary injunction, each alleging that her termination was in retaliation against her because of her status as the class representative in the sex discrimination action. On the date of its filing, plaintiff-appellee’s motion for a tem porary restraining order was denied on the grounds that the termination would not result in irreparable harm and that plaintiff-appellee had an adequate remedy at law. A hearing for the presentation of evidence on plaintiff-appellee’s motion for a preliminary injunction was held on September 16,1976. Chrysler argued at this hearing that plaintiff-appellee had been dismissed for absenteeism pursuant to a nationally established company policy which authorized disciplinary action for any employee absent five (5) consecutive days without adequate substantiation that he or she could not have worked. Plaintiff-ap-pellee countered with evidence that she had been absent from work because of personal problems in the nature of marital difficulties and that she had consulted" }, { "docid": "22537355", "title": "", "text": "action under 42 U. S. C. § 1983 seeking preliminary and permanent injunctive relief and a temporary restraining order preventing the Board from investigating him and from conducting the investigative hearing. The District Court denied the motion for a temporary restraining order. On July 12, 1973, appellants moved to dismiss the complaint. On the same day, appellee filed an amended complaint in which injunctive relief was sought on the ground that Wis. Stat. Ann. §§448.17 and 448.18 were unconstitutional and that appellants’ acts with respect to him violated his constitutional rights. The District Court again denied appellee’s motion for a temporary restraining order, but did not act upon appellants’ motion to dismiss. On July 30, 1973, appellants submitted an amended motion to dismiss. The Board proceeded with its investigative hearing on July 12 and 13, 1973; numerous witnesses testified and appellee’s counsel was present throughout the proceedings. Appellee’s counsel was subsequently informed that appellee could, if he wished, appear before the Board to explain any of the evidence which had been presented. App. 36-37. On September 18, 1973, the Board sent to appellee a notice that a “contested hearing” would be held on October 4, 1973, to determine whether appellee had engaged in certain prohibited acts and that based upon the evidence adduced at the hearing the Board would determine whether his license would be suspended temporarily under Wis. Stat. Ann. §448.18 (7). Appellee moved for a restraining order against the contested hearing. The District Court granted the motion on October 1, 1973. Because the Board had moved from purely investigative proceedings to a hearing aimed at deciding whether suspension of appellee’s license was appropriate, the District Court concluded that a substantial federal question had arisen, namely, whether the authority given to appellants both “to investigate physicians and present charges [and] to rule on those charges and impose punishment, at least to the extent of reprimanding or temporarily suspending” violated appellee’s due process rights. Appellee’s motion to request the convening of a three-judge court was also granted, and appellants’ motion to dismiss was denied. 368 F. Supp. 793, 795-796 (ED" }, { "docid": "7872341", "title": "", "text": "MEMORANDUM OPINION MENTZ, District Judge. Before the Court is the above-styled action, presented on briefs and documents and taken under submission for consideration of the issue of permanent injunctive relief. The Court hereby issues its findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). To the extent that any of the following findings of fact constitute conclusions of law, they are adopted as such; to the extent that any conclusions of law constitute findings of fact, they are so adopted. The findings of fact and conclusions of law contained in this Court’s opinion of October 30, 1991, are incorporated by reference into this opinion. I. Findings of fact On July 22, 1988, defendant Raymond T. Ranger entered into two interrelated contracts with plaintiff MedX, Inc. of Florida, a medical waste disposal company. These contracts consisted of an “Asset Purchase Agreement” and an “Employment Agreement.” In section l(a)(i) of the asset purchase contract, Mr. Ranger agreed to sell MedX his business, Specialty Waste Management, Inc. The purchase contract specifically provided that MedX was buying Specialty Waste’s name, goodwill, going concern value, and substantially all of its assets. Mr. Ranger worked for MedX under the terms of the employment contract from July 22, 1988 until March 16, 1990. MedX has brought suit to enforce its rights under the employment contract. Section 6 of that contract contains a covenant that purports to prevent Mr. Ranger from competing with MedX, accepting employment from its competitors, soliciting its clients or employees, or revealing its trade secrets, all for a period of two years from the end of his employment with MedX. Mr. Ranger was in violation of this covenant from January 1, 1991, to at least August 27, 1991,' when this Court issued a temporary restraining order against him. On October 30, 1991, this Court granted MedX a preliminary injunction “to preserve the relative positions of the parties until a trial on the merits [could] be held.” University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981). MedX now demands that the Court grant permanent injunctive" }, { "docid": "23554748", "title": "", "text": "or denying, after notice and hearing, an interlocutory or permanent injunction in such case.” We are of the opinion that the instant case does not fall within these provisions. This is not a suit to restrain the enforcement of an Act of Congress and no application was made for such an injunction. . This suit was brought on July 5, 1937, by the appellees, Donnelly Garment Company and Donnelly Garment Sales Company, to obtain an injunction restraining the appellants, International Ladies’ Garment Workers’ Union, its officers and agents, from committing certain acts alleged to be in furtherance of a conspiracy in violation of the Sherman Anti-Trust Act and the Clayton Act (15 U. S. C., c. 1). The conduct sought to be restrained consisted of picketing, boycotting and certain interferences with plaintiffs’ business, their employees and customers. Appellee, Donnelly Garment Workers’ Union and its representatives were permitted to intervene and sought similar relief. Their petition in intervention alleged that the defendants [appellants] had not been and were not engaged in a labor dispute.within the meaning of the Act of Congress of March 23, 1932, c. 90, 47 Stat. 70, known as the Norris-LaGuardia Act, nor within the meaning of the Act of Congress of July 5, 1935, c. 372, 49 Stat. 449, known as the National Labor Relations Act, and that no labor dispute was involved in this litigation. They further stated that “if the actions and course of conduct of the defendants” were construed to be a “labor dispute” within the meaning of those statutes, the latter would be unconstitutional, as so interpreted, because in contravention of the Fifth Amendment of the Constitution of . the United States and . of Article II, §. 30, of the Constitution of the State of Missouri. By their amended bill of complaint, appellees, the original plaintiffs, made similar allegations as to the inapplicability of the NorrisLaGuardia Act and its invalidity if held applicable. On the presentation of the bill, the District Judge granted a temporary restraining order enjoining the defendants’ conduct of which complaint was made. A motion to dissolve the restraining" }, { "docid": "21913094", "title": "", "text": "R. LANIER ANDERSON, III, Circuit Judge: Appellants George D. Busbee, et al. bring this appeal from an award of attorney’s fees to appellees Jane Doe, et al. under the Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C.A. § 1988 (West 1981). Ap-pellees were originally successful in obtaining injunctive and declaratory relief in the district court. While the case was on appeal, the Supreme Court of the United States handed down two opinions that effectively rejected the position that the ap-pellees had successfully advanced in the district court. The district court awarded attorney’s fees to the appellees after the two controlling Supreme Court decisions. Upon remand from the court of appeals, the district court vacated its prior judgment granting injunctive and declaratory relief to appellees, dismissed their complaint, taxed costs against the appellees, but refused to withdraw its award of attorney’s fees. The issue before us is whether the appellees are “prevailing parties” within the meaning of § 1988 and thereby entitled to attorney’s fees. We conclude that they are not prevailing parties, and accordingly we reverse the award of attorney’s fees entered by the district court. I. FACTS The relevant facts are not in dispute. On May 8, 1979, the appellees filed a class action under 42 U.S.C.A. § 1983 seeking declaratory judgment that the rules governing the administration of the Medicaid program in Georgia, which limited state funding of abortions to those funded under the Hyde Amendment, were invalid under the Medicaid Act and the United States Constitution. The complaint also sought injunc-tive relief.' The following day, appellees argued a motion for a temporary restraining order before the district court. The court declined to enter a temporary restraining order, but received the consent of counsel for the appellants that the State would provide reimbursement for an abortion performed upon appellee Jane Doe pri- or to a hearing on a preliminary injunction if the district court were to award the preliminary injunction in favor of appellees at a subsequent date. After a hearing on the issue, the court, after concluding that Georgia law did not prohibit expenditure of" }, { "docid": "3146000", "title": "", "text": "KENNEDY, Circuit Judge: This diversity action principally concerns the circumstances in which California law permits a salesman who leaves his employer to solicit the employer’s customers by using various kinds of information acquired in his first position. Plaintiff-appellant Hollingsworth Solderless Terminal Company competes, in California and nationwide, with defendant-appellee Hoffman Electronics Corporation. Hoffman hired a former Hollingsworth salesman to work for it, and Hollingsworth then sued both Hoffman and the salesman, defendant-appellee William Turley. After some discovery, all parties filed for summary judgment and Hollingsworth moved for a preliminary injunction. The trial court ruled against Hollingsworth on all aspects of the case, and Hollingsworth now appeals. We affirm portions of the district court’s judgment, but we also hold that summary judgment should not have been granted as to most aspects of the action. We therefore remand these claims for further proceedings. Finally, we vacate the court’s denial of plaintiff’s motion for a preliminary injunction and remand for reconsideration in light of the principles discussed in this opinion. Facts We state the facts most favorably to Hollingsworth. Hollingsworth and Hoffman compete in the manufacture and sale of solderless terminals and associated tools. Solderless terminals are devices for making electrical connections mechanically, that is, without use of chemical bonding such as soldering. Hand tools, such as crimping tools, are used to effect solderless terminal connections; automatic tools can also be used in some circumstances. Turley began working as a salesman with Hollingsworth on October 1, 1963. He had an exclusive sales territory and was paid a fixed salary plus a commission based on sales. Turley called on Hollingsworth’s customers in his territory at various intervals depending on the customer’s volume and needs. The initial meetings with a potential customer were usually conducted in person. If a business purchased Hollingsworth’s products, later contacts were mostly by telephone, although Turley at times took customers to lunch. The telephone calls were to obtain orders, show a continuing interest, and monitor customers’ needs. Turley was encouraged to service existing customers and find new prospects. At Hollingsworth, Turley acquired information concerning various aspects of his employer’s operations." }, { "docid": "17475117", "title": "", "text": "in violation of the restrictive covenant of his employment contract with Automated. The necessary showing to obtain a preliminary injunction was defined by this court in Crowther v. Seaborg, 415 F.2d 437 (10th Cir. 1969), where, at 439 we stated: In hearings upon motions for temporary or preliminary injunctive relief, the burden is upon the one requesting such relief to make a prima facie case showing a reasonable probability that he will ultimately be entitled to the relief sought. The applicant has the additional burden of showing a right to the specific injunc-tive relief sought because of irreparable injury that will result if the injunction is not granted. The trial court, in making its findings of fact and conclusions of law, first noted that the employment agreement introduced into evidence by Automated was not signed by anyone on behalf of Sales Follow-Up. The court subsequently found, based on the evidence presented, that no agreement had ever been signed by the plaintiff, Automated. Without making a determination, the trial court also questioned the contract’s enforceability for lack of mutuality and Martin’s being subject to any contract at the time he was terminated, in view of the probability that the employment contract came to an end when Martin was promoted to assistant national sales manager. With regard to the mutually agreed confidential commercial property, the court found that even with appellees’ admission of the confidential nature of certain items, there was no proof that they had appropriated, taken away or used any of this information. With respect to the remaining items alleged by Automated but not admitted by appellees to be confidential, the court found these items were not “customarily or ever included within the definition of a trade secret or confidential information.” The court also found there had been no misappropriations of trade secrets. The court observed that the information could be easily compiled due to the wide distribution of the after sales program and published statements about the program. In regard to the employment of one of Automated’s former employees, the trial court found that appellees had not employed Smith" }, { "docid": "1794110", "title": "", "text": "grounds after working hours on July 10, 1969; a Performance Evaluation Report, executed on July 16, 1969, which rated appellant’s overall work performance as “unsatisfactory”; and a letter of August 28, 1969, which informed appellant that his employment with the Hospital would terminate at the close of business on September 9, 1969 because of “the unsatisfactory nature of your work performance.” The complaint alleged that appellant's unsatisfactory rating and dismissal had been substantially motivated by the distribution of the leaflet, and requested (1) a declaration that his discharge was effected in violation of his First and Fourteenth Amendment rights; (2) an injunction to prevent any future Hospital action in violation of his rights; (3) an order that the Performance Evaluation Report be expunged from all official records of the Commonwealth of Pennsylvania; and (4) damages, counsel fees and costs and any other necessary or appropriate relief. At the same time appellant filed a Motion for Preliminary Injunction, incorporating the provisions and prayers for relief recited in the verified complaint, and a hearing thereon was held on September 18, 1969. At the hearing appellant rested his case on the complaint and papers attached thereto, and expressed his willingness to have both preliminary and permanent relief determined then, but this course was rejected by the appellees. The District Judge then orally denied the Motion for Preliminary Injunction and held the case over for a date to be fixed for final hearing, offering to file written findings of fact and conclusions of law. Appellant meanwhile took a timely appeal to the Pennsylvania Civil Service Commission which held a public hearing on October 30, 1969. Thereafter, on December 12, 1969, the parties stipulated that the transcript of the State Civil Service Commission hearing be incorporated into the record then before the District Court, and that the District Judge rule on all of the relief prayed for in the complaint as if on final hearing. On December 19, 1969, the District Judge denied appellant’s motion for a preliminary and permanent injunction, concluding that “(t)he plaintiff has failed to sustain his burden of showing that his" }, { "docid": "9845170", "title": "", "text": "letter shortly after the transcripts of appellee’s deposition were made available. On January 27, 1986, appellee filed a complaint in the instant action in the district court alleging an antitrust claim, a breach of contract claim, and an illegal termination claim. With respect to the illegal termination claim, appellee alleged that appellant had fired him in retaliation for his having given adverse deposition testimony. By order to show cause, appellee moved for a temporary restraining order and a preliminary injunction enjoining appellant from interfering with appellee’s business as a sales representative. A hearing was held on February 7, 1986 before Judge Broderick. At the conclusion of the hearing, in an oral opinion from the bench, Judge Broderick granted appellee’s motion and ordered appellee’s immediate reinstatement. A formal order granting the preliminary injunction and denying a stay was entered February 11. On February 18, we entered a stay pending appeal from the preliminary injunction. II. For the issuance of a preliminary injunction in this Circuit, the moving party has the burden of showing: “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary injunctive relief.” Kaplan v. Board of Education of the City School District of the City of New York, 759 F.2d 256, 259 (2 Cir.1985). The district court here entered the preliminary injunction upon findings of irreparable harm, of sufficiently serious questions going to the merits to make them a fair ground for litigation, and that the balance of hardships tipped decidedly in appellee’s favor. Appellant’s principal claim on appeal is that the court abused its discretion in finding irreparable harm because appellee has an adequate remedy at law, i.e., money damages. We agree. The court’s finding of irreparable harm was based on its subordinate finding that appellee functioned, in certain respects, more like an independent businessman than an employee. The court reasoned that, since appellant considered its sales representatives to be independent contractors, appellee’s situation" }, { "docid": "22410752", "title": "", "text": "throughout the controversy. I It is argued that a state injunction against the appellees, issued on July 11, 1967, ended the strike and thus rendered- the controversy moot. That is not the case. After summarizing the defendants’ unlawful practices, the District Court concluded that “[t]he union’s efforts collapsed under this pressure in June of 1967 and this suit was filed in an effort to seek relief.” Ibid. Thus it was the defendants’ conduct, which is the subject of this suit, that ended the strike, not the state court injunction, which came afterward. With the protection of the federal court decree, appellees could again begin their efforts. Moreover, the state court injunction is quite limited. It proscribes picketing by the appellees and those acting in concert with them only on or near property owned by La Casita Farms, Inc.,' the plaintiff in the state case. But the appellants agreed at oral argument that La Casita is only one of the major employers in the area, and some of the incidents involved occurred at other locations. Moreover the state court injunction was only, temporary, and on appeal the Texas Court of- Civil Appeals, after finding that most of the trial court findings were unsupported, affirmed 'only because of the limited nature of review, under Texas law, of a temporary injunction. The appellate court concluded that “nothing in this opinion is to be taken as a ruling that the evidence before us would support the issuance of a permanent injunction . ...” United Farm Workers Organizing Comm. v. La Casita Farms, Inc., 439 S. W. 2d 398, 403. We were advised at oral argument that no permanent injunction against picketing has ever been issued, and we cannot assume that one will be. Nor can it be argued that the case has become moot because appellees have abandoned their efforts as a result of the very-harassment they sought to restrain by this suit. There can be no requirement that appellees continue to subject themselves to physical violence and unlawful restrictions upon their liberties throughout the pendency of the action in order to preserve it" }, { "docid": "2219453", "title": "", "text": "episode Mrs. Caldwell’s employment as a teacher-aide was terminated. In March 1969 the Caldwells filed this action as a class action, seeking both injunctive relief, a declaratory judgment and, in Mrs. Caldwell’s case, money damages for illegal discharge. The specific relief requested was reinstatement of Charles in the band, with a declaration that he did not need to play “Dixie” and restoration of Mrs. Caldwell’s employment with backpay. Defendants responded to these two issues by claiming that Charles Caldwell was expelled from the band for violating a nondiscriminatory rule (against leaving the band) and that Mrs. Caldwell was fired for inefficiency. Additionally, after taking of depositions, plaintiffs amended their complaint by adding a count protesting religious instruction, which they claim was given during chapel services in the Lebanon High School during school hours in violation of the establishment clause of the First Amendment. The defendants responded to this portion of the complaint by admitting that there were ministers from time to time who spoke at the high school convocations and did lead prayer or preach on bible topics. The defendants stated that attendance at the chapel exercise was entirely voluntary and there had been no prior complaint about the content of the programs. If these three issues were not sufficient, a fourth was added after the District Court hearing was concluded. (The only hearing conducted was a hearing on plaintiffs’ motion for a temporary injunction.) Following that hearing and well before the District Judge’s opinion and judgment were entered, defendants filed a 195-page exhibit consisting of unsworn statements by teachers and students about the Caldwells and the “Dixie” episode. It is conceded that appellants were not served with this material, nor informed that it had been filed, and learned about it only after the Judge’s opinion and judgment had been released and upon inspection of the court file. But the document is a part of the case file as it has been forwarded to us. And appellees brief before the District Judge relied in part upon this “exhibit.” On May 7, 1969, the District Judge decided the case, holding that" } ]

[ { "docid": "23210149", "title": "", "text": "(3). In an earlier statute the legislature had been even more explicit, saying “the court may in its discretion make such order.” Wis.Stats. (1933) 260:19 (3). To the effect that the changed phrasing continues the discretionary power see 1 Moore, op. cit. supra, 778. In England the pertinent provision (O. 16A, r. 1 (1) (c) (1929), Ann.Prac. (1939) 295) is that “the Court or Judge may give leave to the defendant to issue and serve a ‘third-party notice.’ ” This language has been held to place the impleader of third parties within the discretion of the court. Baxter v. France, 1 Q. B. 591 [1895]; Gowar v. Hales, 1 K.B. 191 [1928]; Lo-thian v. Epworth Press (Note to Gowar v. Hales (C. A. 1926) [1928] 1 K.B. 199. And see Ann.Prac. (1939) 296. Against this background of statutes and decisions, the Supreme Court, in framing Rule 14(a), chose the language “a defendant may move . . . for leave as a third-parfy plaintiff to serve a summons and complaint upon a person not a party to the action and the language “If the motion is granted . . . .” (Italics supplied) We think there can be no doubt that it was thus intended to make the im-pleading of third parties in the Federal practice discretionary with the trial court. See 1 Moore, op. cit. supra, 741: “Whether a party to an action shall be allowed to im-plead an additional party rests in the discretion of the court. This is in accord with the English, New York and Wisconsin practices.” With impleader a matter within the discretion of the trial court we could find error in the instant case only upon a theory that the overruling of the motion to implead third parties was an abuse of discretion. We find nothing in the present record indicative of an abuse — especially since neither the appellee, nor even the appellants themselves, asserted a cause of action against the proposed third-party defendants. Affirmed. The declination of the appellee to amend her complaint does not affirmatively appear in the record. But the appellants’" } ]

[ { "docid": "16196107", "title": "", "text": "Rule 14, Federal Rules of Civil Procedure, “Third-Party Practice”, contains no express grant to the court of the power to vacate a previous order of the court permitting third-party defendants to be impleaded. We think, though, that very clearly the court has this power. It would indeed be strange if the court, having properly granted an order permitting such impleading, should find that, at some later stage or turn of the case, the impleading order has become improper, and should then be impotent, though the clear ends of Justice may require it, to vacate this order. We think, further, that the vacation of this order, as in the case of passing such an order, rests in the sound discretion of the trial judge, and that his decision here can be upset on appeal if, but only if, he has abused this discretion. District Judge Chesnut (a recognized authority in this field) in State of Maryland, to Use and Benefit of Wood v. Robinson, D.C., 74 F.Supp. 279, 282, has stated: “While the original exercise of the discretion in this case was to grant leave to file the third party complaint, I take the view that the discretion also equally applies with respect to the present motion to dismiss it.” To like effect is the statement (with citation of authorities) of District Judge Delehant, in Bill Curphy Co. v. Lincoln Bonding & Insurance Co., D.C., 13 F.R.D. 146, 147: “It is recognized by the contending parties that the allowance of third party procedure within Rule 14 and its vacation, once improvidently initiated rest in the mature and informed discretion of the court.” See, also, the opinion of District Judge Brennan in Thomas Worcester, Inc., v. Clover Stores Corporation, D.C., 11 F.R. D. 334, 335; and the opinion of District Judge Chesnut in Lee’s, Inc., v. Transcontinental Underwriters, D.C., 9 F.R.D. 470. Since we think the District Judge here had complete power to vacate his previous order, and, since we further think that in so doing he did not in any way abuse his discretion, his decision on this point must be" }, { "docid": "5105049", "title": "", "text": "By taking advantage of the third-party procedure under Rule 14(a), the defendant does not in effect offer to the plaintiff an additional defendant, thus circumventing the jurisdictional requirements of federal statutes; for if the plaintiff does not recover from the original defendant, he will not recover at all in this action. As to the discretion of the court in third-party actions, Professor Moore states #in his treatise: “Whether a party to an action shall be allowed to implead an additional party rests in the discretion of the court”. 1 Moore’s Federal Practice (1946 Supp.) Sec. 14.02, p. 356. In accord with this view are General Taxicab Ass’n v. O’Shea, 71 App.D.C. 327, 109 F.2d 671; Baltimore & O. R. Co. v. Saunders, 4 Cir., 159 F.2d 481; Tullgren v. Jasper (Maryland Cas. Co.), D.C.Md., 27 F.Supp. 413, 418; Delano v. Ives (Botfield et al.), D.C.E.D.Pa., 40 F.Supp. 672. A dissenting voice is raised in Falcone v. City of New York (Williams-Bauer, Corp.) E.D.N.Y., 2 F.R.D. 87, at page 90, which states: “Rule 14 does not seem to make it a matter of discretion to bring in a third party but a matter of absolute right when the facts warrant it”. But even assuming that we have the discretion to vacate the order granting leave to bring in the third-party defendant, we would not exercise it in the instant case. In the interest of justice, the issues in the action should be resolved in a single trial. This view should not be altered merely because different defenses are available to the third-parties or that the jury may or will be called upon to allocate the percentages of negligence and apportion the damages between them. Watkins v. Baltimore & O. R. Co. (Rochester & Pittsburgh Coal Co.), supra; Culmer v. Baltimore & O. R. Co. (Duff-Nor.ton Mfg. Co.), supra; O’Neill v. American Export Lines (Ro-Ed Engineering Co. et al.), D.C.S.D.N.Y., 5 F.R.D. 182, 183; Pyzynski v. N. Y. C. R. Co. (Eastern States Corp. Milling Corp. and Cuyahoga Wrecking Co.), supra. Under proper instructions from the court, the task of the jury" }, { "docid": "7415209", "title": "", "text": "acquired jurisdiction of the parties and the subject-matter of the bill.” It should also be noted that the granting of leave to file a third party complaint is ordinarily a matter resting within the sound discretion of the trial judge. Baltimore & O. R. Co. v. Saunders, 4 Cir., 159 F.2d 481, 483; Moore’s Federal Practice, Vol. I, p. 741, and Supp. p. 356; General Taxicab Ass’n v. O’Shea, 71 App.D.C. 327, 109 F.2d 671. Some of the reasons for granting leave to file such complaints were pointed out in this court in the case of Tullgren v. Jasper, supra. While the original exercise of the discretion in this case was to grant leave to file the third party complaint, I take the view that the discretion also equally applies with respect to the present motion to dismiss it. One of the reasons for giving leave to file the third party complaint in this case was economy of time and costs in trying all the several issues in the case at one trial. But this consideration no longer exists by reason of the voluntary action of the original defendants in settling with the plaintiffs and taking their release to all persons responsible for the accident. Thus there remains for disposition only the single and isolated question of contribution which can be litigated with equal convenience in the State court where alone it could have been brought by the parties adversely interested therein, save for the original existence of the several issues presented in this case before the settlement and releases. For these reasons I conclude that the motion now made to dismiss the third party-complaint must- be granted. Counsel may-present the appropriate order in due course." }, { "docid": "7265294", "title": "", "text": "Cir., 1947, 165 F.2d 167; Michel v. Meier, supra. From the above authorities it is clear that the propriety of the joinder of the third party defendant was not properly raised by a motion for summary judgment. It is obvious, however, that the third party defendant intended to test the propriety of the order granting leave to file a third party complaint. The proper method to test such an order is a motion to vacate the order and to strike the complaint. 1 Barron and Holtzoff Federal Practice and Procedure (Rules Ed.1950) .§ 427, p. 868; Delano v. Ives, D.C.E.D.Pa.1941, 40 F.Supp. 672; Falcone v. City of New York, D.C.E.D.N.Y.1941, 2 F.R.D. 87; U. S. v. Jollimore, D.C.D.Mass. 1941, 2 F.R.D. 148. Motions to dismiss may be treated as motions to vacate the order and strike the complaint. Delano v. Ives, supra; McPherrin v. Hartford Fire Ins. Co., D.C.D.Neb.1940, 1 F.R.D. 88. In a similar manner this Court may treat the motion for summary judgment as a motion to vacate the order and strike the complaint. Although the third party defendant’s motion be so treated, it is the opinion of this Court that it should be denied. Rule 14(a) permits a defendant, with leave of court, to implead any person “who is or may be liable to him for all or [any] part of the plaintiff’s claim against him”. Whether third party defendants may be brought in and retained is a matter addressed to the court’s discretion. Baltimore & O. R. Co. v. Saunders, 4 Cir., 1947, 159 F.2d 481; General Taxicab Ass’n v. O’Shea, 1940, 71 App.D.C. 327, 109 F.2d 671; Union Nat. Bank of Youngstown, Ohio v. Superior Steel Corp., D.C.W.D.Pa.1949, 9 F.R.D. 128; U. S. v. Jollimore, supra. Although the District Court for the Eastern District of New York in Falcone v. City of New York, supra, adopts the opposite view, the weight of authority supports the view that the granting of leave under Rule 14 is a matter of judicial discretion. Judge Burns of this Court granted the defendants’ motion for leave to join the third" }, { "docid": "23527267", "title": "", "text": "whether the District Court abused its discretion in refusing to complicate the main trial by injecting therein issues as to the liability vel non of the Drill Company and the Railroad. In support of its principal contention, as to appealability, the Drill Company relies mainly on the case, Baltimore & Ohio R. Co. v. United Fuel Gas Co., 4 Cir., 154 F.2d 545. That case involved practice and procedure under Rule 14 relating to third-party practice prior to its 1948 amendment, and the court dismissed an appeal from the denial of a motion under Rule 14 to implead two other parties as premature. When error was again asserted on appeal from the final judgment in the case, with respect to its earlier ruling, the court stated, 159 F.2d 481, 483: “The question whether third party defendants may be brought in on motion is ordinarily a matter resting within the sound discretion of the trial judge. * * * The discretion was prop erly exercised here in denying a motion which would have required plaintiffs to litigate a cause of action which they did not assert in their complaint against parties whom they did not join as defendants, and whose joinder, if they had been joined, would have defeated the jurisdiction of the court.” The ruling might have been otherwise under the 1948 amendment of Rule 14(a) eliminating the phrase authorizing impleader of persons primarily liable to the plaintiff and limiting such impleader to persons secondarily liable to the original defendant. See 1 Barron and Holtzoff, Federal Practice and Procedure, §§ 421-424. We find the Baltimore & Ohio case no authority for the Drill Company’s contention that the order dismissing a cross-claim filed under Rule 13(g) was not final and appealable. Rules 13 and 14 are both intended to avoid circuity of action and to dispose of the entire subject matter arising from one set of facts in one action, thus administering complete and even handed justice expeditiously and economically. They are remedial and should be liberally construed. While beth permit of some discretion on the part of the court, there" }, { "docid": "23490212", "title": "", "text": "328 Ill.App. 631, 644, 67 N.E.2d 215, 221, an Employers’ Liability Act case, the court in referring to an instruction said: “* * * It also directs the jury to compute ‘the present value of future loss of earnings’ without giving any rule by which the jury could make such computation.” However, the court did not hold the instructions as given to be reversible error. See: Free v. Chicago Motor Coach Co., 341 Ill.App. 552, 95 N.E.2d 522, appeal denied 342 Ill.App. i. The defendant herein did not suggest any rule to the court, and of itself we would not regard the court’s failure to furnish a rule as reversible error, although the jury should be given all possible assistance in its attempt to justly compute complicated damages. Over the objection of defendant the trial court gave six instructions which repeated the duty of the defendant to furnish a safe place to work. In a negligence action the instructions should not give undue prominence to particular issues or theories. 65 C.J.S., Negligence, § 281, p. 1225; Wrigley Co. v. Standard Roofing Co., 325 Ill.App. 210, 59 N.E.2d 510. Such frequent -repetition of the phrase, “safe place to work,” might lead a jury to believe that the fact of injury, rather than negligence, was the test of liability. By itself we do not consider the reiteration sufficient for reversal, especially in view of the fact that two of the instructions given were requested by the defendant. Upon a new trial, however, we think such instructions could be rephrased to eliminate to -a considerable extent the reiteration complained of. We make the suggestion,-realizimg that on the whole the instructions were excellent. The trial court denied the defendant leave to. file a third-party complaint setting forth a claim for indemnity against the Ruberqid Company. The court might well have granted such motion, but we feel such matters rest' in the discretion of the trial court. Baltimore & O. R. Co. v. Saunders, 4 Cir., 159 F.2d 481; State of Missouri v. Fidelity & Deposit Co., 8 Cir., 179 F.2d 327; 1 Moore, Federal" }, { "docid": "19039733", "title": "", "text": "no doubt as to the correctness of the rule laid down in the case of Pierce v. Ford Motor Co., supra, and Baltimore & O. R. Co. v. Saunders, 4 Cir., 159 F.2d 481, the case upon which it is based; and it is to be noted that the 1948 amendment of Rule 14 eliminated from the rule the language permitting the joinder condemned in those cases. The bringing in of a third party defendant liable to the original defendant for a liability asserted by plaintiff against the original defendant alone is an entirely different matter. See Blair v. Cleveland Twist Drill Co., 7 Cir., 197 F.2d 842. While the bringing in of third party defendants is a matter resting in the sound discretion of the trial judge, the exercise of the discretion will not be allowed to stand where based upon an erroneous view of the law. Glens Falls Indemnity Co. v. Atlantic Building Corp., 4 Cir., 199 F.2d 60. The discretion, furthermore, is one to be exercised upon sound principles; and only very unusual circumstances would justify the court in denying the joinder of one whose negligence is alleged to be the basis of liability of the defendant named, as the joinder would enable the court to dispose of all questions arising out of such negligence in one trial. Other questions which might be brought in by the presence of the third party need not breed confusion, since the trial judge, under the provisions of rule 42, has it completely within his power to determine what issues shall be tried together and what separately. As the orders from which appeal is attempted are not final, the trial judge has power to reconsider the action taken with respect to bringing in the Richmond Motor Company as a third party defendant; and he may think proper to do this in the light of what is here said. Appeals dismissed." }, { "docid": "16196108", "title": "", "text": "the discretion in this case was to grant leave to file the third party complaint, I take the view that the discretion also equally applies with respect to the present motion to dismiss it.” To like effect is the statement (with citation of authorities) of District Judge Delehant, in Bill Curphy Co. v. Lincoln Bonding & Insurance Co., D.C., 13 F.R.D. 146, 147: “It is recognized by the contending parties that the allowance of third party procedure within Rule 14 and its vacation, once improvidently initiated rest in the mature and informed discretion of the court.” See, also, the opinion of District Judge Brennan in Thomas Worcester, Inc., v. Clover Stores Corporation, D.C., 11 F.R. D. 334, 335; and the opinion of District Judge Chesnut in Lee’s, Inc., v. Transcontinental Underwriters, D.C., 9 F.R.D. 470. Since we think the District Judge here had complete power to vacate his previous order, and, since we further think that in so doing he did not in any way abuse his discretion, his decision on this point must be affirmed. We find no merit in the contention, in opposition to the vacating order, that if suit is brought in the State courts upon the claims not adjudicated in the instant proceeding, R. F. C. may remove this suit to the federal court; and that Fren-kil is estopped from pressing his motion to vacate, because, when he was implead-ed as a third-party defendant, he im-pleaded the receiver and surety of the original defendants. It is not necessary for us to add anything to what was said on these points in the opinion of the District Judge. Perhaps the strongest ground urged against the vacating order is that the various claims involved in this complicated litigation all have a common source and that it would be more economical and expeditious to adjudicate them in the single civil action before the District Court. This is a peculiar field, under all the facts and circumstances, for the play of the trial court’s discretion. From the opinion below we quote: “While it is true that this entire controversy stems" }, { "docid": "19175270", "title": "", "text": "to implead these four prior defendants six years after they settled with the plaintiff, it is not surprising in light of the manner in which this action has been litigated. The action was instituted in 1972, after Limited was adjudicated a bankrupt. From 1975 to 1978 there was no docketed activity, and therefore, the Court closed the case. In 1979, the plaintiff moved to restore the case to the court calendar and the motion was granted. The plaintiff then attempted to take a second deposition of Gabor. When Gabor did not respond to the notice of deposition, the plaintiff moved, pursuant to Rule 37, to strike Gabor’s answer. The Court granted the plaintiff’s motion, and in 1983 a default judgment was entered against Gabor. That judgment was subsequently set aside upon motion by the defendant, and in August 1984, the defendant filed an answer with leave of the Court. See 102 F.R.D. 561 (S.D.N.Y.1984). In February 1985, the defendant filed an amended answer in response to the plaintiff’s second amended complaint, and in March 1985, the defendant moved for leave to serve and file a third-party complaint. Rule 14(a) provides in relevant part that “[a]t any time after commencement of the action a defending party ... may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.” However, unless the third-party complaint is filed within ten days of the defendant’s answer, the defendant must obtain leave of the court to implead a third party. The purpose of Rule 14(a) is to promote judicial economy, achieve consistency of results, and avoid circuity of action. See State Mutual Life Assur. Co. v. Arthur Andersen & Co., 65 F.R.D. 518, 521 (S.D.N.Y.1975); 3 Moore’s Federal Practice, supra, ¶ 14.04. The right to implead third parties, however, is not automatic; the decision to permit impleader rests within the sound discretion of the trial court. See Rosario v. Amalgamated Ladies’ Garment Cutters’ Union, 605 F.2d 1228, 1247 (2d Cir.1979), cert." }, { "docid": "23490213", "title": "", "text": "1225; Wrigley Co. v. Standard Roofing Co., 325 Ill.App. 210, 59 N.E.2d 510. Such frequent -repetition of the phrase, “safe place to work,” might lead a jury to believe that the fact of injury, rather than negligence, was the test of liability. By itself we do not consider the reiteration sufficient for reversal, especially in view of the fact that two of the instructions given were requested by the defendant. Upon a new trial, however, we think such instructions could be rephrased to eliminate to -a considerable extent the reiteration complained of. We make the suggestion,-realizimg that on the whole the instructions were excellent. The trial court denied the defendant leave to. file a third-party complaint setting forth a claim for indemnity against the Ruberqid Company. The court might well have granted such motion, but we feel such matters rest' in the discretion of the trial court. Baltimore & O. R. Co. v. Saunders, 4 Cir., 159 F.2d 481; State of Missouri v. Fidelity & Deposit Co., 8 Cir., 179 F.2d 327; 1 Moore, Federal Practice, p. 356. We hold that denying the motion was not an abuse of discretion, and that refusing defendant’s proferred instruction, to propound the theory that the Ruberoid Company was solely negligent, was not error. Defendant alleges several additional errors in the instructions. Suffice to say that we have carefully considered defendant’s contentions with respect thereto, but hold them to be without merit. ■ However, we feel the defendant was prejudiced by the totality of the errors enumerated, and the judgment of the district court is therefore reversed and the cause remanded for a new trial. It is so Ordered. KERNER, Circuit Judge, concurs in the result. . Bissonette v. National Biscuit Co., 1 Cir., 100 F.2d 1003; Powers v. Wilson, 1 Cir., 110 F.2d 960; Harzig v. Swift & Co., 2 Cir., 154 F.2d 64; Sun Printing & Publishing Ass’n v. Schenck, 2 Cir., 98 F. 925; Reid v. Nelson, 5 Cir., 154 F.2d 724; Consumers Power Co. v. Nash, 6 Cir., 164 F.2d 657; Grand Trunk Western Ry. Co. v. Gilpin, 7 Cir.," }, { "docid": "1238978", "title": "", "text": "Fed. Prac. p. 424; Balcoff v. Teagarden, D.C.S.D.N.Y.1940, 36 F.Supp. 224. I consider Baltimore & Ohio R. R. Co. v. Saunders, 4 Cir., 1947, 159 F.2d 481 and Malkin v. Arundel Corp., D.C.1941, 36 F.Supp. 948 and Tullgren v. Jasper, D.C.Md.1939, 27 F.Supp. 413, relied on by the movant, inapplicable to the present situation. But the second point relied on by the movant is more persuasive. The wording of the rule is not couched in terms that are mandatory but are clearly discretionary. The primary purpose of the Rules (as stated in Rule 1) is that “They shall be construed- to secure the just, speedy, and inexpensive determination of every action.” Pursuant to this mandate I think wherever the application of a rule is dis cretionary and not clearly mandatory the Judge should apply it or not dependent upon the nature and circumstances of the particular case. In the instant situation there are considerations both pro and con with regard to applying the rule. It is urged by the movant that the rule should not be applied because the theory of liability of the original defendant to the plaintiff is entirely different from that asserted by the original defendant against the third-party defendants. The plaintiff’s suit is obviously founded on the contract of the insurance policy and subject to the various provisions and conditions of the policy; while the liability, if any, of the third-party defendants to the original defendant on the theory of subrogation clearly involves an action in tort. Merely this fact of one claim being in contract and the other in tort is not of itself necessarily an obstacle to applying the rule. It is, I think, correctly said in 1948, 3 Moore’s Fed.Prac. p. 426 that “It is immaterial that the liability of the third-party rests on a different theory from that underlying plaintiff’s claim. Forms of action are of no consequence in the federal courts, and a third-party claim may be based on negligence although the main claim sounds in contract, or vice versa.” See also Fruit Growers Co-op. v. Cal. Pie & Baking Co.," }, { "docid": "15246135", "title": "", "text": "application of Rule 14. For instance, see Tullgren v. Jasper, D.C.Md.1939, 27 F.Supp. 413; Malkin v. Aruyndel Corp., D.C.Md.1941, 36 F.Supp. 948; State of Maryland v. Robinson, D.C.Md.1947, 74 F.Supp. 279; Dyke v. Sechrist, D.C.Md.1957, 21 F.R.D. 240 appeal dismissed 4 Cir., 1958, 256 F.2d 881. See also Ford Motor Co. v. Milby, 4 Cir., 1954, 210 F.2d 137, and 3 Moore, Federal Practice, 2d Ed. s. 14.26. Probably the clearest appellate court decision explaining the scope of the term “ancillary” is in the opinion of Judge Clark in Friend v. Middle Atlantic Transp. Co., 2 Cir., 1946, 153 F.2d 778, at page 780, where it is said: “While there is strong argument for applying the concept of ‘ancillary’ jurisdiction to the extent reasonably possible in order to secure the procedural advantages of the rule, the authorities which have made the more careful discrimination among the various possible situations have not supported its extension to the present one.” In that case the third-party complaint failed because in effect it merely tendered another defendant to the plaintiff as did Baltimore & O. R. Co. v. Saunders, 4 Cir., 1947, 159 F.2d 481. See also article by Willis, Five Years of Federal Third-Party Practice, 29 Va.L.Rev. 981. These two cases illustrate the inherent difficulties with respect to federal jurisdiction applicable before the amendment of the rule effective in 1948 and probably were quite instrumental in causing the amendment. It is for these reasons that I have concluded that the motion to dismiss the third-party complaint in this case should be and it is hereby overruled by the Court this 25th day of November, 1958." }, { "docid": "7415207", "title": "", "text": "jurisdiction to dispose of the whole controversy including any matters within the ancillary jurisdiction, even though matters remaining for full determination involve only parts of the controversy existing between residents of the same State who have come into the case by reason of ancillary jurisdiction. Numerous cases are cited in support of this general proposition, the principal ones being Craig v. Dorr, 4 Cir., 1906, 145 F. 307; Morgan’s Louisiana & T. R. & S. S. Co. v. Texas Central Ry., 137 U.S. 171, 200, 11 S.Ct. 61, 34 L.Ed. 625; Central Union Trust Co. v. Anderson County, 268 U.S. 93, 45 S.Ct. 427, 69 L.Ed. 862; Ross v. Miller, 4 Cir., 252 F. 697; Woodbury v. Andrew Jergens Co., 2 Cir., 69 F.2d 49, 51; Moore Bros. Const. Co. v. City of St. Louis, 7 Cir., 159 F.2d 586. I have examined these cases but find them, for various reasons, inapplicable to the present situation. Most of the cases involve complete disposition by the court of property in its possession or controversies over title to land or property including cross-bills properly filed in the cases for the purpose of completely disposing of all the subjects matter properly growing out of the main case. For instance, in Craig v. Dorr, supra, most relied upon by counsel for the original defendants, the suit involved a complicated title to lands, jurisdiction in the bill of complaint being based on diverse citizenship, but with a cross-bill filed by some of the defendants against other defendants both of the same citizenship. There was a decree in favor of the plaintiffs but the court also proceeded to determine the rights of the defendants inter sese arising on the cross-bill. It was held that the original decree in favor of the plaintiffs did not terminate the jurisdiction of the court to proceed with an adjudication of the issues raised by the cross-bills. It will be noted, however, that it was stated by the court 145 F. at page 310: “The questions raised- or the subject-matter of the cross-bill was expressly retained by the court, which had" }, { "docid": "21968899", "title": "", "text": "(W.D.Iowa, 1961); Luth v. Clifton Steamship Corp., 27 F.R.D. 507 (E.D.Pa., 1961). See also, in a different context, Washington County Insurance Co. v. Wilkinson, 19 F.R.D. 177, 178-179 (D.Md., 1956); Segal v. American Casualty Co. of Reading, Pa., 250 F.Supp. 936, 939 (D.Md., 1966). The Court concludes that leave to file the proposed amendment should not be granted, because its only purpose is to deprive the third-party defendant of the j'ury trial which third-party defendant has demanded. The question remains whether third-party defendant’s demand for jury trial “of all issues herein”, filed with its answer to the third-party complaint, includes the issues raised by the original complaint and answer, as well as the issues raised by the third-party complaint and the answer thereto, in view of the fact that third-party defendant did not file an answer to the original complaint, as it might have done. The passage from Moore, quoted in Section A of this opinion, dealing with the Banks case, is not conclusive of the question now under consideration, because in this (Korzun) case the third-party defendant is more intimately concerned with the issues between plaintiff and defendant than is usual. The conclusions reached on those issues will in this (Korzun) case, for all practical purposes, control the decision of the question whether third-party defendant must indemnify defendant, as well as the amount for which it may be held liable. Applying the general principles set out above, the Court concludes that third-party defendant’s failure to answer the plaintiff’s complaint and the ambiguity of its demand for a jury trial requires a ruling that third-party defendant is not entitled as a matter of right under Rule 38 to a jury trial of the issues raised by the original complaint and answer. But under the circumstances of this ease, particularly (1) the practical identity of the issues, referred to above, and (2) the fact that plaintiff did not bring his suit in admiralty, as he might have done, this Court concludes that it should exercise its discretion under Rule 39(b), see note 5, above, to grant third-party defendant’s oral motion to" }, { "docid": "7415202", "title": "", "text": "CHESNUT, District Judge. The motion now before the court presents another novel question of procedure under Rule 14 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. William E. Wood was killed as a result of an automobile collision on a Maryland Highway occurring February 19, 1946. On September 16, 1946 his widow and infant son brought suit under the Maryland Lord Campbell’s Act, Code 1939, art. 67, § 1 et seq., against the defendants Robinson & Haas, and Swann, for alleged .negligence in causing the accident. Subsequently on motion of these defendants leave was given to them to file a third party complaint against the defendants Marvin and William R. Oursler who, it was alleged, were joint.tort -feasors; and thereafter the motion to dismiss the third party complaint was overruled. The plaintiffs are citizens of the State of Virginia and the original defendants are citizens of the State of Maryland. The jurisdiction of the court is based solely on diverse citizenship. The first motion to dismiss the third party complaint was based on the ground that both the original defendants and the third party defendants are all residents of the State of Maryland. The motion was overruled because the court was of the opinion that the jurisdiction having been originally properly invoked on the ground of diverse citizenship between the plaintiffs and the original defendants, the third party complaint properly invoked the ancillary jurisdiction of the court and was therefore not subject to dismissal for lack of diverse citizenship between the original defendants and the third party defendants. There have been many federal judicial decisions- supporting this view. Vol. I, Moore’s Federal Practice, page 781, and Supplement, page 373, citing numerous cases; Williams v. Keyes, 5 Cir., 125 F.2d 208, certiorari denied 1942, 316 U.S. 699, 62 S.Ct. 1297, 86 L.Ed. 1768. See also Tullgren v. Jasper, D.C.Md., 27 F.Supp. 413, 416; Malkin v. Arundel Corporation, D.C.Md., 36 F.Supp. 948. Cf. Baltimore & O. R. Co. v. Saunders, 4 Cir., 159 F.2d 481, where the question as to jurisdiction was presented in a different way. But" }, { "docid": "7415208", "title": "", "text": "to land or property including cross-bills properly filed in the cases for the purpose of completely disposing of all the subjects matter properly growing out of the main case. For instance, in Craig v. Dorr, supra, most relied upon by counsel for the original defendants, the suit involved a complicated title to lands, jurisdiction in the bill of complaint being based on diverse citizenship, but with a cross-bill filed by some of the defendants against other defendants both of the same citizenship. There was a decree in favor of the plaintiffs but the court also proceeded to determine the rights of the defendants inter sese arising on the cross-bill. It was held that the original decree in favor of the plaintiffs did not terminate the jurisdiction of the court to proceed with an adjudication of the issues raised by the cross-bills. It will be noted, however, that it was stated by the court 145 F. at page 310: “The questions raised- or the subject-matter of the cross-bill was expressly retained by the court, which had acquired jurisdiction of the parties and the subject-matter of the bill.” It should also be noted that the granting of leave to file a third party complaint is ordinarily a matter resting within the sound discretion of the trial judge. Baltimore & O. R. Co. v. Saunders, 4 Cir., 159 F.2d 481, 483; Moore’s Federal Practice, Vol. I, p. 741, and Supp. p. 356; General Taxicab Ass’n v. O’Shea, 71 App.D.C. 327, 109 F.2d 671. Some of the reasons for granting leave to file such complaints were pointed out in this court in the case of Tullgren v. Jasper, supra. While the original exercise of the discretion in this case was to grant leave to file the third party complaint, I take the view that the discretion also equally applies with respect to the present motion to dismiss it. One of the reasons for giving leave to file the third party complaint in this case was economy of time and costs in trying all the several issues in the case at one trial. But this" }, { "docid": "5105048", "title": "", "text": "Top Mountain R. & Coal Co. (Russell et al.), D.C.E.D.Pa., 3 F.R.D. 24; Davis v. Associated Indemnity Corp. (Daniels), D.C.M.D.Pa., 56 F.Supp. 541. Where the basis of liability for the claim for relief of the third-party complaint is not dependent upon federal law, the substantive law of the place where the operative facts took place governs. Brown v. Cranston, 2 Cir., 132 F.2d 631, 633, 634, 148 A.L.R. 1178, certiorari denied 319 U.S. 741, 63 S.Ct. 1028, 87 L.Ed. 1698; Jeub v. B/G Foods, Inc., D.C.Minn., 2 F.R.D. 238. Also see Jones v. Waterman S. S. Corp., supra. Therefore, aside from its rights which it may enforce under the contract, the third-party plaintiff would be able, assuming that the third-party defendant will be shown to have been negligent, to obtain contribution from the latter under the Pennsylvania Law. Trerotola v. Philadelphia, 346 Pa. 222, 29 A.2d 788; Anstine v. Pennsylvania R. Co., 352 Pa. 547, 43 A.2d 109, 160 A.L.R. 981. See Young v. Wilky Carrier Corp. et al., 3 Cir., 150 F.2d 764, 765. By taking advantage of the third-party procedure under Rule 14(a), the defendant does not in effect offer to the plaintiff an additional defendant, thus circumventing the jurisdictional requirements of federal statutes; for if the plaintiff does not recover from the original defendant, he will not recover at all in this action. As to the discretion of the court in third-party actions, Professor Moore states #in his treatise: “Whether a party to an action shall be allowed to implead an additional party rests in the discretion of the court”. 1 Moore’s Federal Practice (1946 Supp.) Sec. 14.02, p. 356. In accord with this view are General Taxicab Ass’n v. O’Shea, 71 App.D.C. 327, 109 F.2d 671; Baltimore & O. R. Co. v. Saunders, 4 Cir., 159 F.2d 481; Tullgren v. Jasper (Maryland Cas. Co.), D.C.Md., 27 F.Supp. 413, 418; Delano v. Ives (Botfield et al.), D.C.E.D.Pa., 40 F.Supp. 672. A dissenting voice is raised in Falcone v. City of New York (Williams-Bauer, Corp.) E.D.N.Y., 2 F.R.D. 87, at page 90, which states: “Rule 14 does not" }, { "docid": "21968898", "title": "", "text": "identifying the claim as an admiralty and maritime claim. Rule 15 permits the requested amendment at this time “only by leave of court or by written consent of the adverse party”, but “leave shall be freely given when j'ustice so requires”. See note 3, above. The proposed amendment is opposed both by defendant and by third-party defendant. A request to amend a complaint by adding such an identifying statement is subj'ect to the provisons of Rules 15, 38 and 39, see notes 3, 4 and 5, above. The Court’s discretion under Rule 15 should be governed by the principles stated in Rules 38 and 39 and the cases applying those principles. See discussion and cases cited in 5 Moore’s Federal Practice, 2d ed., ¶ 39.09, and the supplement thereto. See particularly General Tire & Rubber Co. v. Watkins, 331 F.2d 192 (4 Cir., 1964); Ellerman Lines, Ltd. v. Atlantic & Gulf Stevedores, 339 F.2d 673 (3 Cir., 1964); McAndrews v. United States Lines Co., 167 F.Supp. 41 (S.D.N.Y., 1958); Brandt v. Olson, 190 F.Supp. 683 (W.D.Iowa, 1961); Luth v. Clifton Steamship Corp., 27 F.R.D. 507 (E.D.Pa., 1961). See also, in a different context, Washington County Insurance Co. v. Wilkinson, 19 F.R.D. 177, 178-179 (D.Md., 1956); Segal v. American Casualty Co. of Reading, Pa., 250 F.Supp. 936, 939 (D.Md., 1966). The Court concludes that leave to file the proposed amendment should not be granted, because its only purpose is to deprive the third-party defendant of the j'ury trial which third-party defendant has demanded. The question remains whether third-party defendant’s demand for jury trial “of all issues herein”, filed with its answer to the third-party complaint, includes the issues raised by the original complaint and answer, as well as the issues raised by the third-party complaint and the answer thereto, in view of the fact that third-party defendant did not file an answer to the original complaint, as it might have done. The passage from Moore, quoted in Section A of this opinion, dealing with the Banks case, is not conclusive of the question now under consideration, because in this (Korzun) case" }, { "docid": "7265295", "title": "", "text": "complaint. Although the third party defendant’s motion be so treated, it is the opinion of this Court that it should be denied. Rule 14(a) permits a defendant, with leave of court, to implead any person “who is or may be liable to him for all or [any] part of the plaintiff’s claim against him”. Whether third party defendants may be brought in and retained is a matter addressed to the court’s discretion. Baltimore & O. R. Co. v. Saunders, 4 Cir., 1947, 159 F.2d 481; General Taxicab Ass’n v. O’Shea, 1940, 71 App.D.C. 327, 109 F.2d 671; Union Nat. Bank of Youngstown, Ohio v. Superior Steel Corp., D.C.W.D.Pa.1949, 9 F.R.D. 128; U. S. v. Jollimore, supra. Although the District Court for the Eastern District of New York in Falcone v. City of New York, supra, adopts the opposite view, the weight of authority supports the view that the granting of leave under Rule 14 is a matter of judicial discretion. Judge Burns of this Court granted the defendants’ motion for leave to join the third party defendant. Since this was a matter addressed to his discretion and for the further reason that, as provided in Rule 14(a) the third party plaintiffs assert a claim against the third party defendant for all of the plaintiff’s claim against them, this Court could vacate the original order only on a showing of abuse of discretion. No such showing exists here. Furthermore, the order should not be vacated for the reason that the motion was not a timely one. As previously indicated, the third party defendant filed a request for admissions under Rule 36 as well as an answer to third party plaintiffs’ complaint. Subsequent to the filing of an answer to the admissions by one of the third party plaintiffs, the third party defendant filed the motion. Although there is no provision in the rules relating to the time of filing a motion to vacate, the reasoning underlying the requirement of Rule 12(b) that a motion to dismiss be made before pleading is applicable here and may be considered by the court in" }, { "docid": "7415203", "title": "", "text": "based on the ground that both the original defendants and the third party defendants are all residents of the State of Maryland. The motion was overruled because the court was of the opinion that the jurisdiction having been originally properly invoked on the ground of diverse citizenship between the plaintiffs and the original defendants, the third party complaint properly invoked the ancillary jurisdiction of the court and was therefore not subject to dismissal for lack of diverse citizenship between the original defendants and the third party defendants. There have been many federal judicial decisions- supporting this view. Vol. I, Moore’s Federal Practice, page 781, and Supplement, page 373, citing numerous cases; Williams v. Keyes, 5 Cir., 125 F.2d 208, certiorari denied 1942, 316 U.S. 699, 62 S.Ct. 1297, 86 L.Ed. 1768. See also Tullgren v. Jasper, D.C.Md., 27 F.Supp. 413, 416; Malkin v. Arundel Corporation, D.C.Md., 36 F.Supp. 948. Cf. Baltimore & O. R. Co. v. Saunders, 4 Cir., 159 F.2d 481, where the question as to jurisdiction was presented in a different way. But the present subsequent motion to dismiss the third party complaint now before the court involves an entirely new point. It alleged that the original defendants subsequent to the filing of the third party complaint, have settled the case with the plaintiffs, and have taken from the latter full and formal releases which have acquitted and discharged the defendants and any and all other persons, firms and corporations, of and from any and all actions for damages arising from said alleged negligent automobile collision. Photostatic copies of the releases are annexed to the motion and counsel for the original defendants concede the fact of the settlement and releases, but nevertheless contend that they have the right to proceed with the trial of the third party complaint for contribution from the third party defendants by reason of the Maryland statute (Md.Code Supp.1943, Art. 50, § 22) which reads: “(a) The right of contribution exists among joint tortfeasors. “(b) A joint tortfeasor is not entitled to a money judgment for contribution until he has by payment discharged the" } ]

[ { "docid": "22178226", "title": "", "text": "could not be attacked collaterally. The Bogert suit, however, was a suit on behalf of the minority stockholders, asserting no corporate right of the railway company, but only the right of minority stockholders. The right asserted in the prior suits and that asserted in the Bogert suit were, therefore, the rights of different parties. It is further urged that the judgment of the District Court was. not upon the merits but upon the plea' in bar and that, therefore, when the equity suit was begun, plaintiff in error had no choice of remedies, since the judgment rendered established that in fact there was no remedy in equity at all. The contention, we think, is unsound. The defense of the statute of limitations is not a technical defense but' substantial' and meritorious. The great weight of modern authority is to this effect. Lilly-Brackett Co. v. Sonnemann, 157 Cal. 192; Wheeler v. Castor, 11 N. Dak. 347, 353, et seg., where the authorities are reviewed. Such statutes are not-only statutes of repose, but they supply the place of evidence lost or impaired by lapse of time by raising a presumption which renders proof unnecessary. Bell v. Morrison, 1 Pet. 351, 360; Hanger v. Abbott, 6 Wall. 532, 538; Wood v. Carpenter, 101 U. S. 135, 139; Riddlesbarger v. Hartford Insurance Co., 7 Wall., 386, 390. And see United States v. Chandler-Dunbar Water Power Co., 209 U. S. 447, 450. In Wood v. Carpenter, this Court said: “ Statutes of limitation are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence.' They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to'activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof .unnecessary. Mere delay, extending to the limit prescribed, is itself a conclusive bar. The bane and antidote go together.” In Riddlesbarger v. Hartford Insurance Co.: “ They are founded upon the general experience of" } ]

[ { "docid": "19827162", "title": "", "text": "December 31, 1993 Audit Bureau of Circulations Statement, appended to Motion, Exhibit B (3,003,235 total circulation for the September 7, 1993 edition). This textual reading conforms with Pennsylvania’s well-established strictness in applying discovery rules. For example, a plaintiffs insanity, even a mental disability that forecloses “discovery” of any outer reality apprehensible to unimpaired people, does not in Pennsylvania toll the statute. 42 Pa.Cons. Stat.Ann. § 5533(a). See, e.g., Bowser v. Guttendorf, 373 Pa.Super. 402, 406, 541 A.2d 377, 379-80 (1988). In any event, since Pennsylvania law has always premised discovery on the actions of a reasonable person, see e.g., Bradley v. Ragheb, 429 Pa.Super. 616, 620-22, 633 A.2d 192, 194-95 (1993), it would seem to us that no such person could be deemed unaware of a publication so widely distributed in Pennsylvania no later than ■ September 1, 1993. This conclusion is fortified by the Pennsylvania Supreme Court’s consistent stress on the importance of statutes of limitations: The defense of the statute of limitations is not a technical defense but substantial and meritorious.... Such statutes are not only statutes of repose, but they supply the place of evidence lost or impaired by lapse of time, by raising a presumption, which renders proof unnecessary.... Statutes of limitation are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation.... Schmucker v. Naugle, 426 Pa. 203, 205-206, 231 A.2d 121, 123 (1967) (quoting United States v. Oregon Lumber Co., 260 U.S. 290, 299-300, 43 S.Ct. 100, 102, 67 L.Ed. 261 (1922) (quotation marks omitted)). We do not believe the Pennsylvania Supreme Court would give Mrs. Bradford the grace of discovery for this, the third most widely circulated weekly publication in America. D. Estoppel Due to the “Cover Date” Finally, Dominiak forecloses the Bradfords’ argument that American Media Operations should be estopped from asserting any publication date other than the cover date of the issue in question. Since that contention was explicitly" }, { "docid": "3942180", "title": "", "text": "the statute of limitations has begun to run. See id. The delayed discovery rule was codified by the Florida legislature in 1999. See Fla. Stat. ch. 95.031 (2002). Appellants concede § 95.031 does not specifically extend the delayed discovery doctrine to wrongful death actions. That statute provides as follows: An action for products liability under § 95.11(3) must be begun within the period prescribed in this chapter, with the period running from the date that the facts giving rise to the cause of action were discovered, or should have been discovered with the exercise of due diligence .... Under no circumstances may a claimant commence an action for products liability, including a wrongful death action or any other claim arising from personal injury or property damage caused by a product, ... if the harm was caused by exposure to or use of the product more than 12 years after delivery of the product to its first purchaser or lessee.... Fla. Stat. ch. 95.031(2)(b). The first part of this section codifies the delayed discovery rule for products liability actions; the second part of the section is a twelve-year statute of repose for products liability actions, including wrongful death actions caused by a defective product. As the Supreme Court of Florida has recently explained, there is no other statutory basis for the delayed discovery rule, except for the statutes specifically governing fraud, products liability, professional and medical malpractice, and intentional torts based on abuse, each of which permits postponing accrual where there is delayed discovery. Davis v. Monahan, 882 So.2d 708, 710 (Fla.2002). It is plain from the statutory text that the delayed discovery rule of § 95.031(2)(b) applies only to products liability actions under § 95.11(3), not wrongful death actions which are governed by § 95.11(4)(d). Plaintiffs argue, however, that it makes little sense for § 95.031(2)(b) to extend the statute of repose to wrongful death actions without similarly extending the delayed discovery rule to wrongful death actions. As a pure matter of statutory interpretation, this argument fails because the statute simply does not extend the delayed discovery rule to wrongful" }, { "docid": "375489", "title": "", "text": "claims, I examine the interplay between non-bankruptcy law and pertinent Bankruptcy Code provisions. 1. Claim eleven for professional malpractice With regard to claim eleven for professional malpractice, § 13-80-102, C.R.S. provides: (1) The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within two years after the cause of action accrues, and not thereafter: (a) tort actions, including but not limited to actions for negligence.... Section 13-80-102(l)(a), C.R.S. (emphasis added). Next, I consider 11 USC § 108, also relied on by the Trustee to establish the date by which claim ■ eleven was required to be filed. Section 108 provides: (a) If applicable nonbankruptcy law ... fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of— (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) two years after the order for relief. Title 11 U.S.C. § 108(a) (emphasis added). If the November 30,1994 filing date of the involuntary petition is the date of accrual, pursuant to § 13 — 80—102(l)(a)(l), the Trustee was required to file the professional malpractice complaint by November 30, 1996. The order for relief was filed on January 9, 1995. Under the terms of § 108(a)(2), therefore, the Trustee was required to file claim eleven by January 9, 1997. The pertinent date for evaluating the applicable statutes of limitations is January 9, 1997, the later of the two dates. See § 108(a). The original complaint, filed on March 29, 1996, well within the January 9, 1997 expiration date, contained a claim for professional malpractice against “John Does 1-10,” but did not name Garry Appel or the Appel law firm as defendants. Complaint, ¶¶ 88-90. However, the Complaint contained the following statement: 16. John Does 1-10 are professional ad-visors, attorneys and accountants, whose identities are partially known, (e.g., Scott Brown, Esq. and Garry Appel," }, { "docid": "10756394", "title": "", "text": "acts constituting the fraud”); see also Pinigis v. Regions Bank, 977 So.2d 446, 449 (Ala.2007) (“[Statutes of repose, unlike statutes of limitations, are not subject to equitable tolling, even under compelling circumstances.”) (internal quotations and citation omitted). Therefore, because Plaintiffs claims against Powell Goldstein were filed after the expiration of the ALSLA’s statute of repose, which is not subject to tolling, Plaintiff’s claims are time-barred and subject to dismissal with prejudice. 3. Plaintif’s Claims Were Filed After the Expiration of the Two-Year Limitations Period Provided by 11 U.S.C. § 108(a)(2). Plaintiffs claims against Powell Goldstein are also barred by the limitations/extension period set forth in the Bankruptcy Code, 11 U.S.C. § 108(a), which provides: commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of— If applicable nonbankruptcy law ... fixes a period within which the debtor may (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) two years after the order for relief. The Bankruptcy Code defines an “order for relief’ under 11 U.S.C. § 108(a)(2) as “[t]he commencement of a voluntary case under a chapter of this title.” 11 U.S.C. § 301(b); see also McQueen v. Barnes (In re Pac One, Inc.), 2007 WL 2083817, *3, 2007 U.S. Dist. LEXIS 51670, at *9 (N.D.Ga. July 17, 2007) (finding that the two-year limitations period under 11 U.S.C. § 108(a)(2) begins to run on the date of the filing of the bankruptcy petition). Accepting the facts alleged in the Amended Complaint as true, the ALSLA’s two-year statute of limitations began to run on July 28, 2004, and had not yet expired by the time that Verilink filed its bankruptcy petition on April 9, 2006. Thus, the Bankruptcy Code provided a new two-year limitations period, which began to run on April 9, 2006 and expired on April 9, 2008. Plaintiff did not file the Amended Complaint until more than five months after the expiration of the deadline provided by" }, { "docid": "3942179", "title": "", "text": "a wrongful death action is two years. See Fla. Stat. ch. 95.11(4)(d). The accrual date for a wrongful death action is the date of death. See Fulton County Adm’r v. Sullivan, 753 So.2d 549, 552 (Fla.1999). Ordinarily, therefore, Appellants would have had until July 4, 1999 — two years from the date of Scott Raie’s death — to commence this action. Absent tolling or some other delay in the running of the statute of limitations, Appellants’ action was untimely when it was filed on May 29, 2002. A. Appellants’ first argument to rescue their wrongful death action relies upon Florida’s delayed discovery doctrine. “The ‘delayed discovery’ doctrine generally provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action.” Hearndon v. Graham, 767 So.2d 1179, 1184 (Fla.2000). The delayed discovery doctrine applies to the accrual of a cause of action; it does not toll the applicable statute of limitations once the cause of action has accrued and the statute of limitations has begun to run. See id. The delayed discovery rule was codified by the Florida legislature in 1999. See Fla. Stat. ch. 95.031 (2002). Appellants concede § 95.031 does not specifically extend the delayed discovery doctrine to wrongful death actions. That statute provides as follows: An action for products liability under § 95.11(3) must be begun within the period prescribed in this chapter, with the period running from the date that the facts giving rise to the cause of action were discovered, or should have been discovered with the exercise of due diligence .... Under no circumstances may a claimant commence an action for products liability, including a wrongful death action or any other claim arising from personal injury or property damage caused by a product, ... if the harm was caused by exposure to or use of the product more than 12 years after delivery of the product to its first purchaser or lessee.... Fla. Stat. ch. 95.031(2)(b). The first part of this section codifies the delayed discovery rule for" }, { "docid": "17978358", "title": "", "text": "becomes important. Section 11(e) is phrased in terms of the trustee’s ability to bring an action within the longer of two years from the date of adjudication or the expiration of a limitations period provided by nonbank-ruptcy law. Here, however, the trustee declined to bring the action, and Debtor is prosecuting the case on his own behalf. In Matter of Dickson, 432 F.Supp. 752 (W.D.N.C.1977), the debtor asserted a right of action against a lender resulting from certain Truth in Lending violations that had allegedly been committed prior to bankruptcy. Because the alleged infractions oc-cured within one year of the bankruptcy petition, and because the Truth in Lending Act contemplates a one year statute of limitations , the court determined that the trustee in bankruptcy could avail himself of the two year extension provided by Section 11(e) of the Bankruptcy Act. As to the debtor’s rights to bring the action after the expiration of the one year period, however, the court found that no such extension applied. “The action was not barred when the (debtors) filed their petition, and so the trustee’s action is not barred. There is no tolling provision for the debtors, however, and so their action is barred by statute, and will be dismissed.” (emphasis original). 432 F.Supp. at 756. Cf. In re Craig, 7 B.R. 864, 866 (Bkrtcy.E.D.Tenn.1980) (“Section 108, like Section 11(e), does not expressly extend the time within which debtors may bring suits not barred at the time of filing. It appears Section 108 was not meant to extend the time for debtors.”); Costello v. Pan American World Airways, Inc., 295 F.Supp. 1384, 1390 (S.D.N.Y.1969). Accordingly, this Court must measure from the date the cause of action arose, i.e. August 3, 1976, rather than from the date of adjudication, to determine whether this action brought by Debtor, rather than the trustee, is barred by limitations. Neither party has cited to this Court a relevant nonbankruptcy limitations period. It is difficult to ascertain from Debt- or’s pleadings whether he wishes to characterize this action as one in equity, i.e., to compel turnover of the property," }, { "docid": "4139988", "title": "", "text": "satisfy Florida’s two-year statute of limitations if this suit is to proceed. See Fla. Stat. § 95.11(4)(a) (establishing a two-year limit for the filing of professional malpractice actions). This Florida limitation period runs from “the time the cause of action is discovered or should have been discovered with the exercise of due diligence.” Id. In normal circumstances, the knowledge of a corporation’s directors (and therefore their discovery of malpractice) is imputed to the corporation. See Seidman & Seidman v. Gee, 625 So.2d 1, 2 (Fla.Dist.Ct. App.1992) (per curiam), review granted, 640 So.2d 1106 (Fla.1994), cause dismissed, 653 So.2d 384 (Fla.1995). Thus, Deloitte contends that the directors’ knowledge of Deloitte’s alleged malpractice was imputed to Southeast in 1988, and that the statute of limitations therefore expired in 1990. The Trustee, however, argues that Southeast’s cause of action against Deloitte did not accrue until his appointment because the directors’ interest regarding Deloitte’s use of the Pooling Method was adverse to that of Southeast. As the Florida courts have recognized, “an exception to the imputation rule exists where an individual is acting adversely to the corporation. In that situation, the officer’s knowledge and conduct are not imputed to the corporation.” Id. at 2-3; Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Assoc., 117 F.3d 1328, 1338-39 (11th Cir.1997) (applying Florida law); Tew v. Chase Manhattan Bank, N.A., 728 F.Supp. 1551, 1560 (S.D.Fla.1990) (same). The key question thus becomes: Did the Trustee allege facts that might conceivably establish that the directors’ interest was adverse? In its orders dismissing this ease, the district court ruled that the Trustee could not avail himself of the adverse interest exception because Deloitte’s alleged malpractice brought Southeast some short-term benefit. In so holding, the district court was correct that Florida law requires that a corporate officer’s interest be entirely adverse for the exception to apply (i.e., his actions must neither be intended to benefit the corporation nor actually cause short- or long-term benefit to the corporation). See Gee, 625 So.2d at 3. Under Florida law, the knowledge of a corporate officer whose fraud or misbehavior brings short-term gain" }, { "docid": "375488", "title": "", "text": "a reasonable jury could return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 252, 106 S.Ct. 2505; Mares, 971 F.2d at 494. Unsupported allegations without “any significant probative evidence tending to support the complaint” are insufficient, see White at 360 (internal quote and citation omitted), as are conclusory assertions that factual disputes exist. Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. B. Appel defendants’ summary judgment motion on claims eleven and twelve— statute of limitations Consistent with their Rule 12(c) motion, Appel defendants contend that claims eleven and twelve are brought pursuant to the Trustee’s “debtor” status. They argue that pursuant to this “debtor” status, Sender’s claims are barred by Colorado’s two-year statute of limitations applicable to tort actions. Having determined that the Trustee may assert these claims as a § 544(a) creditor, see section 11(B)(2) and (3), I rely on authority addressing the relationship between § 544(a) actions and the pertinent statutes of limitations. To determine the date after which the applicable statutes of limitations barred the filing of claims, I examine the interplay between non-bankruptcy law and pertinent Bankruptcy Code provisions. 1. Claim eleven for professional malpractice With regard to claim eleven for professional malpractice, § 13-80-102, C.R.S. provides: (1) The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within two years after the cause of action accrues, and not thereafter: (a) tort actions, including but not limited to actions for negligence.... Section 13-80-102(l)(a), C.R.S. (emphasis added). Next, I consider 11 USC § 108, also relied on by the Trustee to establish the date by which claim ■ eleven was required to be filed. Section 108 provides: (a) If applicable nonbankruptcy law ... fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of— (1) the end of such period, including any suspension of such period occurring on or after the commencement of the" }, { "docid": "5949360", "title": "", "text": "has upheld the right to declaratory judgments despite an ambiguity in calculating the amount of future damages, stating that: The declaratory judgment is an effective tool in judicial administration. We should not be niggardly in its use, nor encase it with inflexibilities and rigidities, but rather hone it to specific problems. The facts presented to this Court show that there is a real controversy presented between adverse parties which is of sufficient immediacy to warrant the Court denying the Motion to Dismiss the Complaint for Declaratory Judgment and invoking its discretionary jurisdiction over Plaintiff’s complaint. As to the Third Party Defendant’s Motion to Dismiss the Third Party Complaint, we find it is similarly without merit and must be denied. WASA, the Third Party Plaintiff has filed a Third Party Complaint against the Engineering firm which performed the soil quality tests. The Engineers move to dismiss, alleging that the third party action is barred by the Florida Statute of Limitations, Sections 95.-ll(3)(a), 95.11(4)(a) and 95.11(5)(a). Section 95.11(5)(a) speaks of a one year limitations period for an action for specific performance of a contract. This is inapplicable to the facts before the Court. Section 95.11(3)(a) or (4)(a) are the applicable limitations provisions, which grant a four and two year period, respectively. Section 95.-ll(3)(a) pertains to negligence actions and (4)(a) pertains to actions based upon profess sional malpractice. Section 95.11(4)(a) specifically states that the: period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. The Engineers are wrong in calculating the running of the statute from the date of their signing of the contract to perform the tests for WASA on September 8,1977. The limitations period began running either when the work was performed in May 1980 or when the cause of action was discovered, or should have been, with due diligence. Calculating the allowable time frame using the more restrictive two year period of (4)(a) and the date the work was performed gave WASA until May of 1982 to file their complaint against the Engineers. The complaint" }, { "docid": "22692472", "title": "", "text": "the discovery of the cause of action. Statutes of limitation are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extending to the limit prescribed, is itself a conclusive bar. The bane and antidote go together. The provision in.the statute of which the plaintiff seeks to avail himself was originally established in equity, and has since been made applicable, in trials at law. ■ There is no trace of it in the English statute of limitations of' the 21st of James I., which was adopted in most of the American colonies before the Revolution, and has since been the foundation of nearly all of the like legislation in this country. Having been imported from equity, the adjudications of equitable and legal tribunals upon the subject are' alike entitled to consideration. Upon looking carefully into the reply, we find it sets forth that the concealment touching the cause of action was effected by the defendant by means of the several frauds and falsehoods averred more at length in the complaint. The former is only a brief epitome of the latter. There is the same generality of statement and denunciation, and the same absence of specific details in both. No point in the complaint is omitted in the reply, but no new light is thrown in which tends to show the relation of cause and' effect, or, in other words, that the protracted concealment.'which is admitted .necessarily followed from the, faets and circiknstances which are said to have produced it. It will be observed also that there- is no averment that during the long period over which the transactions referred to extended, the plaintiff ever made or caused to be made-.the slightest inquiry in relation to either of them. The" }, { "docid": "6723745", "title": "", "text": "run, was not involved in that case. See United States v. Exploration Co., 203 Fed. 387, 121 C. C. A. 491. Nor is it involved in the case before us, for, as before stated, there is neither allegation nor proof of any concealment on the part of Rounds of his purchase of the land; in fact, he placed the evidence of his purchase upon the public record of land titles in the county where the land is situated before the suit was brought against Norris. In Wood v. Car penter, 101 U. S. 135, at page 139, 25 L. Ed. 807, Mr. Justice Swayne, speaking of statutes of limitation, said: “Statutes of limitation are vital to ttie welfare of society and are favored in tlie law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extending to the limit prescribed, is itself a conclusive bar. The- bane and antidote go together. * * * In this class of cases the plaintiff is held to stringent rules of pleading and evidence, and especially must there be distinct averments as to the time when the fraud, mistake, concealment, or misrepresentation was discovered, and what the discovery is, so that the court may clearly see whether, by ordinary diligence, the discovery might not have been before made.” Courts cannot rightly insert in the statute of limitations an exception which the statute itself does not contain. McIver v. Ragan, 2 Wheat. 24, 29, 4 L. Ed. 175. It is true that the government is not bound by a statute of limitations, unless Congress has clearly manifested its intention that it shall be so bound. . United States v. Thompson, 98 U. S. 486, 25 L. Ed. 194; United States v. Nashville, etc., Ry. Co., 118 U. S. 120, 125, 6 Sup. Ct. 1006, 30" }, { "docid": "4680504", "title": "", "text": "parties have argued extensively the statute of limitations issue both in their trial briefs and in the summary judgment motion heard by the Court before trial. The Court finds that MGIC’s claim is not barred by the applicable statute of limitations. The dischargeability provisions of the Bankruptcy Code contained in section 523 include no statute of limitations. Where the Bankruptcy Code is silent, and no uniform bankruptcy rule is required, the rights of the parties are governed by the underlying non-bankruptcy law. Cf. Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979): Property interests are created and defined by state law. Unless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy .... Thus California law provides the applicable statute of limitations for MGIC’s claim. California’s statute of limitations for fraud claims is three years. California Code of Civil Procedure § 338(4) (West 1982). As is typical of fraud statutes, the three years is tolled until the fraud is discovered or should be discovered: section 338(4) provides, “The cause of action ... is not to be deemed to have accrued until the discovery, by the aggrieved party of the facts constituting the fraud ....” The statute of limitations was tolled by the filing of the bankruptcy case on November 8, 1985, and has not begun to run again. Bankruptcy Code § 108(c), 11 U.S.C. § 108(c) (Supp.1988) provides for the tolling of the statute of limitations: Except as provided in section 524 of this title, if applicable nonbankruptcy law, an order entered in a nonbankruptey proceeding, or an agreement fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor ... and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of— (1) the end of such period, including any suspension of such period occurring on or after" }, { "docid": "10756393", "title": "", "text": "four-year statute of repose. Because Plaintiff did not file his claims against Powell Goldstein until September 29, 2008 — two months past the expiration of the statute of repose — Plaintiffs claims are time-barred. Plaintiffs arguments about fraudulent concealment on the part of Powell Goldstein are irrelevant to this analysis because the ALSLA’s statute of repose is not subject to tolling under any circumstances. See Kachler v. Taylor, 849 F.Supp. 1503, 1513 (M.D.Ala.1994) (finding that the ALSLA precluded the plaintiffs’ reliance on a tolling statute because under the ALSLA, regardless of alleged fraudulent concealment, the plaintiffs had four years from the time they suffered legal injury as a result of the defendant’s malpractice to file the claim); Leighton Ave. Office Plaza, Ltd. v. Campbell, 584 So.2d 1340, 1344 (Ala.1991) (holding that “a legal malpractice action based on allegations of fraud must be commenced within two years after the discovery by the aggrieved party of the fact constituting the fraud; provided, however, that no action may be commenced more than four years after the act or acts constituting the fraud”); see also Pinigis v. Regions Bank, 977 So.2d 446, 449 (Ala.2007) (“[Statutes of repose, unlike statutes of limitations, are not subject to equitable tolling, even under compelling circumstances.”) (internal quotations and citation omitted). Therefore, because Plaintiffs claims against Powell Goldstein were filed after the expiration of the ALSLA’s statute of repose, which is not subject to tolling, Plaintiff’s claims are time-barred and subject to dismissal with prejudice. 3. Plaintif’s Claims Were Filed After the Expiration of the Two-Year Limitations Period Provided by 11 U.S.C. § 108(a)(2). Plaintiffs claims against Powell Goldstein are also barred by the limitations/extension period set forth in the Bankruptcy Code, 11 U.S.C. § 108(a), which provides: commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of— If applicable nonbankruptcy law ... fixes a period within which the debtor may (1) the end of such period, including any suspension of such period occurring on or after the commencement of" }, { "docid": "22692471", "title": "", "text": "Ind. 453; Cravens v. Duncan, 55 id. 347. The statute begins to run when the fraud is perpetrated. Wynne et al. v. Cornelison et al., 52 id. 312. In the case in hand, the specific wrong complained of, and the gravamen of the action, is the transfer of the judgments against Carpenter for the consideration of fifty cents on the dollar of principal and interest, when it is averred they were good for the entire amount, and which transfer, it is alleged, was brought about' by the fraud and misrepresentations of the defendant and Keller. It is averred in the complaint that they were assigned on the 1st of January, 1864. The cause of action then accrued, and- the statute began to run. The averments of fraud, aside from this transaction, are only matters of inducement.. The bar of the statute became complete on the 1st of January, 1870, unless the reply brings the case within sect. 219, which declares that, where there is concealment, such actions may be brought within the time limited! after the discovery of the cause of action. Statutes of limitation are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extending to the limit prescribed, is itself a conclusive bar. The bane and antidote go together. The provision in.the statute of which the plaintiff seeks to avail himself was originally established in equity, and has since been made applicable, in trials at law. ■ There is no trace of it in the English statute of limitations of' the 21st of James I., which was adopted in most of the American colonies before the Revolution, and has since been the foundation of nearly all of the like legislation in this country. Having been imported" }, { "docid": "19346738", "title": "", "text": "knowledge is imputed to the corporation. Because Hantges’ and Milanowski’s knowledge is imputed to USACM here, the adverse domination doctrine cannot be applied to toll the statute of limitations. Because the Trust’s claims are barred by the applicable statute of limitations under Nevada law, we do not reach, and do not address other issues presented by the parties, including those related to De-loitte’s alternative in pari delicto defense. AFFIRMED. . At the time of the district court’s opinion, the Nevada Supreme Court had not yet issued its opinion in Glenbrook Capital Ltd. P’ship v. Dodds (In re Amerco Derivative Litig.), 252 P.3d 681, 695-96 (Nev.2011), officially adopting the sole actor rule. However, the district court accurately predicted that the Nevada Supreme Court would do so. . The sole actor rule is a limited exception to the adverse interest exception, which precludes the general imputation of an agent’s acts to the principal corporation under agency law when the agent's actions are \"completely and totally adverse to the corporation.” Glenbrook, 252 P.3d at 695. . 11 U.S.C. § 108(a) extends applicable limitations periods in the bankruptcy context up to an additional \"two years after the order for relief” provided that the limitations period has \"not expired before the date of the filing of the petition.” . Nev.Rev.Stat. Ann. § 11.2075(1) requires that an action against an accounting firm \"to recover damages for malpractice must be commenced within” the earlier of (a) two years after the date on which the actionable conduct is discovered or should have been discovered, (b) four years after \"completion of performance of the service for which the action is brought”, or (c) four years after the date of the \"initial issuance of the report prepared by the accountant ... regarding the financial statements or other information.” .Nev.Rev.Stat. Ann. § 11.190(3)(d), applied by the district court to the breaches of fiduciary duty claim, provides limitations for an action grounded on fraud. Under Nevada law, the “true nature” of a breach of fiduciary claim determines the applicable limitations period. Stalk v. Mushkin, 125 Nev. 21, 199 P.3d 838, 841-42 (2009)." }, { "docid": "1100322", "title": "", "text": "merely designed to harass SMEC. On the basis of these facts, the earliest date that the statute of limitations could have begun to run was September 25, 1984. Six years from that date was September 25, 1990. This date is not the final date for filing by the Trustee, however, for 11 U.S.C. § 108(a) provides for an enlargement of time for trustee-initiated actions on behalf of the estate. If the statute of limitations has not run by the date of filing of the bankruptcy petition, the trustee may file an action before the later of (1) the end of the period of limitation or (2) two years after the order for relief. See 11 U.S.C.A. § 108(a) (West 1993). SMEC filed for bankruptcy on August 13, 1990; hence the statute of limitations had not run by the date the petition was filed and § 108(a) is applicable. Therefore, the Trustee had until August 13, 1992 in which to file this action. This action was filed on August 12, 1992, one day before the time for filing expired. By operation of the § 108(a) extension, this action is not time-barred. D. Statement of a Tenable Claim Defendants Weinstein & Sutton and Wein-stein individually dispute the sufficiency of plaintiffs evidence of malpractice. The defendants argue that the doctrine of equivalents is a very murky area of law, about which reasonable people disagree, and therefore it is unreasonable to find negligence for failing to advise a client that he or she may be infringing under this doctrine. The plaintiffs response is that a reasonable lawyer would have at least advised SMEC about possible infringement under this doctrine, even if a precise opinion could not be given, so that SMEC would have been fully aware of possible liabilities. This difference of opinion is assessed under well-established standards of summary judgment. Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986);" }, { "docid": "4139987", "title": "", "text": "failure to state a viable claim, a defendant thus bears the “very high burden” of showing that the plaintiff cannot conceivably prove any set of facts that would entitle him to relief. See Jackam v. Hospital Corp. of Am. Mideast, Ltd., 800 F.2d 1577, 1579 (11th Cir.1986). We review the district court’s decision to dismiss on the pleadings de novo. See McKusick v. City of Melbourne, 96 F.3d 478, 482 (11th Cir.1996). This appeal turns on a single issue: whether the directors’ self-interest in the acquisition prevented the accrual of Southeast’s malpractice action, and thus running of the statute of limitations, until the Trustee’s appointment. Under 11 U.S.C. § 108(a), a trustee of a bankrupt may bring a suit either (1) within the regularly-applicable statute of limitations or (2) within two years of the order for relief if the regularly-applicable limit did not expire before the filing of the bankruptcy petition. Because the Trustee filed the present action two years and one day after the date of the petition, he must allege facts sufficient to satisfy Florida’s two-year statute of limitations if this suit is to proceed. See Fla. Stat. § 95.11(4)(a) (establishing a two-year limit for the filing of professional malpractice actions). This Florida limitation period runs from “the time the cause of action is discovered or should have been discovered with the exercise of due diligence.” Id. In normal circumstances, the knowledge of a corporation’s directors (and therefore their discovery of malpractice) is imputed to the corporation. See Seidman & Seidman v. Gee, 625 So.2d 1, 2 (Fla.Dist.Ct. App.1992) (per curiam), review granted, 640 So.2d 1106 (Fla.1994), cause dismissed, 653 So.2d 384 (Fla.1995). Thus, Deloitte contends that the directors’ knowledge of Deloitte’s alleged malpractice was imputed to Southeast in 1988, and that the statute of limitations therefore expired in 1990. The Trustee, however, argues that Southeast’s cause of action against Deloitte did not accrue until his appointment because the directors’ interest regarding Deloitte’s use of the Pooling Method was adverse to that of Southeast. As the Florida courts have recognized, “an exception to the imputation rule exists where" }, { "docid": "16084222", "title": "", "text": "Trust’s distributions. This may turn out to be the case, but there is nothing in the Complaint that supports these allegations. See U.S. v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1261 (D.C.Cir.2004) (court’s inquiry is limited to “the allegations in the complaint”). The argument is not ripe on a motion to dismiss under Rule 12(b)(6). D. Affirmative Defenses Common to All Defendants Finally, all of the Defendants assert that (1) the Trust’s claims are untimely under the applicable statute of limitations; and (2) the Trust’s claims are barred in their entirety by the doctrine of in pari delicto. The court considers each defense in turn. 1. Statute of limitations Under District of Columbia law, claims for breach of fiduciary duty and for legal malpractice must be raised within three years of the victims’s discovery of the breach. D.C.Code Ann. § 12-301(8) (2001). A bankruptcy trustee is granted an additional two years from the filing of the bankruptcy petition in which to raise a claim on behalf of the estate assuming that the statute of limitations did not expire prior to the petition. See 11 U.S.C. § 108(a); Rothenberg v. Ralph D. Kaiser Co. (In re Rothenberg), 173 B.R. 4, 11 (Bankr.D.D.C.1994). The Trust alleges that Epstein Becker prepared negligent opinion papers as late as December 30, 1999 (it does not specify a time with respect to Kutak Rock), and Count II of the Complaint alleges wrongful conduct by Paul Tuft beginning in July of 2001, so the claims were still viable to some degree on the Debtors’ petition date. The only question is whether they remained viable for another two years under § 108(a). Section 108(a) states: (a) If applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of— (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case;" }, { "docid": "21655966", "title": "", "text": "cause of action were discovered or should have been discovered with the exercise of due diligence.” Fla. Stat. § 95.031(2)(a). Even with this momentary advantagé, the fraud count suffers from a fatal flaw. The discovery exception in such a case is limited by another statute of repose. “[A]n action for fraud ... must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered.” Id. (emphasis added). Trudel and Ruslan allege that SunTrust closed the account in January 2003, yet the sons did not initiate this lawsuit until November 2015, ten months past the twelve-year repose period. See SAC, ¶ 97; EOF No. 1. Given that so much time has passed, the delayed-discovery doctrine is of no help. Next, Plaintiffs also wish to have this statutory delayed-discovery doctrine extend to their other claims regarding Account 5216. On this point, Florida law is not so liberal. That legislature has provided statutory delayed-discovery rules only for claims of fraud, products liability, professional malpractice, medical malpractice, and intentional torts based on abuse. See Fla. Stat. §§ 95.031(2), 95.11(4)(a), (4)(b), (7). The state has no catch-all discovery statute. Nor is this Court empowered to create an extra-statutory extension to the doctrine here. In two recent cases, the Florida Supreme Court addressed whether such a general exception existed as a matter of judicial, as opposed to statutory, construction. First, in Hearndon v. Graham, 767 So.2d 1179 (Fla. 2000), it considered the viability of crafting one for a tort based on childhood sexual abuse when the abuse-based statutory exception had only been passed after the plaintiff filed her lawsuit. Hearndon did allow for a judge-made discovery rule in that case, reasoning that such a carve-out was consistent with the later-passed statute, the ehild-sexual-abuse exception was now widely accepted in American jurisprudence, and the law should acknowledge the uniquely pernicious effects of childhood molestation on ■victims’ memory. Id. at 1185-86. In the wake of Hearndon, Florida District Courts of Appeal divided on the reach of the delayed-discovery rule. The state’s Supreme" }, { "docid": "8255947", "title": "", "text": "Court cannot conclude that a delay of less than two years from the date of sale to the date of the filing of this lawsuit is unreasonable. Moreover, the doctrine of unclean hands would likely bar the Defendants from relying on the equitable defense of laches. See Martin v. Brevard County Pub. Sch., No. 6:05-CV-971, 2007 WL 496777, *21 (M.D.Fla. Feb. 13, 2007) (slip-op.) (holding that a defendant could not rely on the equitable defense of estoppel because he came to the court with unclean hands); Williamson v. Williamson, 367 So.2d 1016, 1018 (Fla.1979). Under Florida law, the statutes of limitations for actions at law also will apply to the same subject matters at equity. Fla. Stat. § 95.11(6) (2007). The statute of limitations for a legal or equitable action founded upon fraud is four years. Fla. Stat. § 95.11(3)(j). A cause of action founded upon fraud accrues when the facts giving rise to the cause of action “were discovered or should have been discovered with the exercise of due diligence ...” but must commence within 12 years of the date of commission of the fraud. Fla. Stat. § 95.031(2). The fraud in this case was discovered at some time after the sale on October 25, 2004. This action was commenced on July 28, 2006, well within four years of discovery. Therefore, neither laches nor the statute of limitations bar this action. Damages Damages in tort cases are compensatory — the goal is “to restore the injured party to the position it would have been in had the wrong not been committed.” Nordyne, Inc. v. Fla. Mobile Home Supply, Inc., 625 So.2d 1283, 1286 (Fla. 1st DCA 1993). Florida courts apply a two-pronged flexibility theory to damages in fraud, which allows courts to use either the out-of-pocket or the benefit-of-the-bargain rule, “depending upon which is more likely to fully compensate the injured party.” Id.; see also Morgan Stanley & Co., Inc. v. Coleman (Parent) Holdings, Inc., 955 So.2d 1124, 1128 (Fla. 4th DCA 2007). The out-of-pocket rule would have the court calculate damages as the difference between the purchase price" } ]

[ { "docid": "22650949", "title": "", "text": "211 S. E. 2d 577 (1974), and that homicide was a horrifying torture-murder. The petitioner also argues that two of the statutory aggravating circumstances are vague and therefore susceptible of widely differing interpretations, thus creating a substantial risk that the death penalty will be arbitrarily inflicted by Georgia juries. In light of the decisions of the Supreme Court of Georgia we must disagree. First, the petitioner attacks that part of § 27-2534.1 (b) (1) that authorizes a jury to consider whether a defendant has a “substantial history of serious assaultive criminal convictions.” The Supreme Court of Georgia, however, has demonstrated a concern that the new sentencing procedures provide guidance to juries. It held this provision to be impermissibly vague in Arnold v. State, 236 Ga. 534, 540, 224 S. E. 2d 386, 391 (1976), because it did not provide the jury with “sufficiently 'clear and objective standards.’ ” Second, the petitioner points to § 27-2534.1 (b)(3) which speaks of creating a “great risk of death to more than one person.” While such a phrase might be susceptible of an overly broad interpretation, the Supreme Court of Georgia has not so construed it. The only case in which the court upheld a conviction in reliance on this aggravating circumstance involved a man who stood up in a church and fired a gun indiscriminately into the audience. See Chenault v. State, 234 Ga. 216, 216 S. E. 2d 223 (1975). On the other hand, the court expressly reversed a finding of great risk when the victim was simply kid-naped in a parking lot. See Jarrell v. State, 234 Ga. 410, 424, 216 S. E. 2d 258, 269 (1975). The petitioner next argues that the requirements of Furman are not met here because the jury has the power to decline to impose the death penalty even if it finds that one or more statutory aggravating circumstances are present in the case. This contention misinterprets Furman. See supra, at 198-199. Moreover, it ignores the role of the Supreme Court of Georgia which reviews each death sentence to determine whether it is proportional to other" } ]

[ { "docid": "22252467", "title": "", "text": "state court denied the petition, holding that the charge to the jury, viewed as a whole, would have informed the jury of its ability to recommend a life sentence even if aggravating circumstances were present. The court focused on language in the instruction telling the jury that, if it found a statutory aggravating circumstance, it would be “authorized to consider” whether to impose a death penalty. The court reasoned that the “authorization” to consider a death sentence implied the ability not to impose the death penalty. The Supreme Court of Georgia denied a certificate of probable cause to appeal. Petitioner next raised his jury instruction claim in the instant petition for habeas relief filed in the district court. The district court concluded that the jury instruction met the requirements enunciated in Spivey and Goodwin and denied the petition. As we have indicated in Part I.B., supra, the panel affirmed the district court on this issue. Following the panel’s decision and before the initial argument to the en banc court, the Supreme Court of Georgia decided Stynchcombe v. Floyd, 252 Ga. 113, 114, 311 S.E.2d 828, 830 (1984), which held that a jury instruction very similar to the one in this case did not “include language explaining to the jury that they could recommend a life sentence even if they found the existence of a statutory aggravating circumstance.” The jury in Floyd, like the jury at petitioner’s trial, had been instructed that upon finding an aggravating circumstance it was “authorized to consider” imposing a sentence of death. The Supreme Court of Georgia’s decision in Floyd therefore made it appear that petitioner’s jury instruction claim had been erroneously decided in his initial state habeas proceeding. We held this case in abeyance so that petitioner could present to the Georgia courts any claims he might have arising out of Stynchcombe v. Floyd. Petitioner then filed a new petition in state court seeking habeas relief. The state habeas court refused to reconsider the merits of petitioner’s jury instruction claim because the identical issue had been raised in a previous petition. The court held that" }, { "docid": "1976967", "title": "", "text": "disagrees. The mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default. See Carrier, 477 U.S. at 486, 106 S.Ct. 2639. Further, the Court is not persuaded that the alleged faulty jury instruction amounted to a deprivation of due process: therefore, any error of appellate counsel in failing to raise this claim on direct appeal does not constitute sufficient cause to overcome the procedural default. Gravley, 87 F.3d at 785. Finally, Morales has not plausibly argued that he is “actually innocent” of the offenses for which he was convicted. For this additional reason, Ground 4 cannot be heard in federal habeas. For the foregoing reasons, the Court concludes that the decision of the Eighth District to decline to address the claim asserted in Ground 4 because of Morales’ noncompliance with the res judicata rule embodied in Perry bars its consideration herein. Ground 4 is overruled. Ground 5 — The Sentencing Of Petitioner To The Death Penalty Without The Jury Having First Found Petitioner Guilty Of Being The Principal Offender As Required Pursuant To The Capital Specification Of Aggravated Murder In The Course Of Kidnapping, Pursuant To R.C. § 2929.01(A)(7) Violated Petitioner’s Rights As Guaranteed To Him By The Sixth, Eighth And Fourteenth Amendments To The United States Constitution. In Ground 5, Morales alleges that he was denied his right to a fair trial because the jury did not specifically find him to be the principal offender in the offenses. Respondent again asserts that Morales failed to raise this claim both on direct appeal and in the Petition. For this reason, Respondent argues, this claim has been procedurally defaulted. Morales replies as follows: What Respondent fails to recognize is that this claim was presented in Petitioner's Application for Reconsideration pursuant to Murnahan. Appendix to ROW. Exhibit EEEE. pp. 25-28. The court of appeals addressed the issue on its merits in its decision. Appendix to ROW, Exhibit GGGG, pp. 29-30. Because the court of appeals addressed the issue on the" }, { "docid": "5550282", "title": "", "text": "find the aggravating circumstance applicable to both defendants. Respondents argue that this claim was not raised as a federal constitutional issue to the state courts and that any federal constitutional claim is thus procedurally defaulted. Respondents also contend that the coroner’s testimony proved that Milano had been tortured and that the state court’s disposition of this issue did not result in a decision that is contrary to, or an unreasonable application of, federal law. The Court first notes that this claim was presented as a state law issue on petitioner’s direct appeal and that petitioner’s counsel on direct appeal conceded that “[t]he trial court clearly charged the jury with the correct language of the circumstance as well as the requirement of specific intent to torture.” Br. for Appellant at 58 (July 19, 1989) (emphasis in original). The claim was not pursued on PCRA appeal. However, the Court concludes that the aspect of this claim regarding eviden-tiary sufficiency was automatically exhausted by the Pennsylvania Supreme Court’s mandatory review, which requires the court to conduct an examination of whether “the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d).” 42 Pa. Cons.Stat. Ann. § 9711(h)(3)(ii). In this case, the jury found two aggravating circumstances — that “the defendant committed the killing while in the perpetration of a felony, [42 Pa. Cons.Stat. Ann. § 9711(d)(6),] .and (d)(8) the offense was committed by means of torture.” Laird, 555 Pa. at 636 n. 2, 726 A.2d at 349 n. 2. Having concluded that petitioner’s claim regarding the question of evidentiary sufficiency to support the aggravating circumstance of torture is not procedurally defaulted, federal review of the claim is not foreclosed. The claim that the jury instruction was improper, however, does not fall squarely into the scope of review anticipated by Pennsylvania’s mandatory appellate review scheme as the underlying facts of the claim do not present an error that implicates the grounds for relief set forth in § 9711(h)(3). Thus, the Court concludes that this portion of the claim is procedurally defaulted and federal habeas relief on petitioner’s challenge" }, { "docid": "11424266", "title": "", "text": "(1) the murder was committed while the offender was engaged in the commission of other capital felonies, i.e. armed robbery, and (2) that he committed the murder for the purpose of receiving the victims’ money and automobile. Id. at 161, 96 S.Ct. at 2919. The Supreme Court granted certiorari on petitioner’s Eighth and Fourteenth Amendments challenges to imposition of the death sentence on these findings. Id. at 162, 96 S.Ct. at 2920. The Supreme Court upheld Gregg’s death sentence after concluding, inter alia, that the jury’s discretion was adequately channeled by the statutory requirement that it find at least one aggravating circumstance before considering any mitigating circumstances. Id. at 198, 96 S.Ct. at 2936. In Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), the Supreme Court considered whether a sentence of death may be imposed upon a single aggravating circumstance, if that single circumstance is also an element of the underlying first-degree murder offense. Id. at 233, 108 S.Ct. at 548. It upheld a Louisiana statutory scheme that included in its definition of first-degree murder the element of “specific intent to kill or to inflict great bodily harm [while] ... engaged in the perpetration of ... armed robbery or simple robbery.” Id. at 242, 108 S.Ct. at 553. The Louisiana death penalty statute, like Georgia’s, required a jury to find at least one aggravating circumstance before sentencing a defendant to death. The jury sentenced the defendant to death on three counts of first-degree murder. To support each of these three sentences, it found only one valid statutory aggravating circumstances, namely that the defendant knowingly created a risk of death or bodily harm to more than one person. Id. at 243, 108 S.Ct. at 554. On direct appeal, the Louisiana Supreme Court upheld the three convictions and the sentences. It ruled that the aggravating circumstance was established by the evidence and was sufficient to support the death sentences the jury imposed. Id. at 235-36, 108 S.Ct. at 549-50. On habeas, the petitioner in Lowenfield raised the issue “whether a sentence of death may validly rest upon" }, { "docid": "139318", "title": "", "text": "with regard to sentences, which are an exercise of discretion. For this reason, I propose that we use an “eligibility” test, analyzing what could be done, rather than trying to read the sentencer’s mind (the jury’s or the court’s) and predict what it would have done. See infra p. 1190. . In other words, federal habeas courts will not vindicate prophylactic rules, like the exclusionary rule, at this stage of the petitioner’s quest for habeas relief; these rules have little to do with finding actual innocence. . It is for this reason that I cannot accept Judge Anderson’s proposed standard for judging actual innocence. In my view, that standard, which requires federal courts to determine whether it is more likely than not that the jury would have judged the petitioner differently absent the constitutional error, will promote uncertainty and arbitrariness in federal habeas corpus. Federal judges, asked to read jurors' or judges’ minds and divine their intentions, will undoubtedly come to irreconcilable conclusions in factually similar cases. I would, thus, limit a federal habeas court’s inquiry to objective factors. See supra note 8. . The eligibility test I set forth incorporates proportionality review, where state courts examine objectively whether the sentence received in a particular case is proportionate to the sentences received in factually similar cases. . The petitioner’s attorney failed to raise this claim on direct appeal. Under Virginia procedural law, the petitioner was thus barred from subsequently raising the claim in a collateral attack on his conviction. The Supreme Court rejected the petitioner’s argument that his appellate counsel’s ignorance, the perceived futility of raising the claim at the time of his appeal, or the alleged novelty of the claim was cause to excuse the procedural default. See Smith, 477 U.S. at 533-37, 106 S.Ct. at 2665-68. . The Court also assumed that a constitutional violation had occurred; in other words, the jury should not have heard the evidence that established the first of the statutory aggravating circumstances. . Under the Virginia death penalty scheme in place at the time the petitioner in Smith was sentenced, only one of" }, { "docid": "11659002", "title": "", "text": "rule of criminal procedure” necessary to ensure fundamental fairness. Sawyer, therefore, dictates that petitioner cannot ground his claim on the nonretroactive new rule announced in Caldwell. E. Failure to Consider Nonstatutory Mitigating Factors. Petitioner relies on Magwood v. Smith as new law to argue, as he did in his first habeas petition, that he was denied a meaningful sentencing hearing through the trial judge’s failure to find mitigating factors clearly set out in the record. In Magwood, this court held that “a federal habeas court may review a state court factual finding concerning the existence of mitigating circumstances_” However, Magwood reaffirms the principle that “a federal habeas corpus court will not re-evaluate the weight accorded to particular aggravating and mitigating factors.” Because Magwood goes only to federal court review regarding the existence of mitigating factors, it does not affect the result in our prior opinion. There, we stated that [w]here the issue is one of fact ..., we accept the state courts’ decision about the weight of mitigating evidence absent fundamental error. No such error has been shown on this record. Indeed, the state introduced substantial testimony by two psychiatrists rebutting the defense’s claim that Johnson suffered from PTSD. The Florida Supreme Court, after reviewing the findings of the trial court regarding petitioner’s presentation of psychological evidence, reasoned that “[i]t was within the trial judge’s province to grant the two psychologists’ testimony little or no weight.” Thus, the trial court considered, and rejected, evidence of Johnson’s emotional and mental state as mitigating evidence. The district court correctly determined that the trial judge’s findings were fairly supported by the record. F. Automatic, Statutory Aggravating Circumstance. Petitioner was charged with premeditated murder and felony murder. The jury was charged on both counts and returned a general verdict. Johnson argues that imposition of the death penalty in his case was predicated upon an automatic finding of a statutory aggravating circumstance-the felony murder that formed the basis of his conviction-and, as such, violates the Eighth and Fourteenth Amendments. Petitioner raised this claim on direct appeal, but not in his first habeas petition. He now" }, { "docid": "23136526", "title": "", "text": "it is excessive. The Supreme Court has rejected this . challenge. See Gregg v. Georgia, 428 U.S. 153, 179-82, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). b. arbitrary application Petitioner next attacks the arbitrary manner in which the death penalty is applied. Among other things, he notes that race seems to play a part in its application, pointing to the disproportionate number of African-Americans on death row. We deny petitioner habeas relief on this claim because he has failed to demonstrate a constitutionally significant risk of racial bias affecting the Ohio capital sentencing process. c. not least restrictive punishment Petitioner contends that the death penalty “is neither the least restrictive nor an effective means of deterrence.” The imposition of the death penalty has been consistently upheld by the Supreme Court. Until the Court holds to the contrary, we are bound by its decisions. d. failure to require intent to kill Petitioner argues that Ohio’s death penalty scheme is defective because it does not require proof that a defendant had a “conscious desire to kill.” The Supreme Court has held that such a conscious desire to kill is not required in order to impose the death penalty. See Tison v. Arizona, 481 U.S. 137, 158, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) (major participation in the felony committed, combined with reckless indifference to human life, enough to justify death even though defendant did not have intent to kill). e. proof of mitigation Petitioner next objects to the manner in which the Ohio statute allows weighing of the aggravating and mitigating circumstances because it does “not require the state to prove the absence of any mitigating factors or that death is the only appropriate penalty.” The Supreme Court only requires that the statutory scheme requires that the aggravating circumstances outweigh the mitigating ones. See Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990) (scheme mandating death penalty if jury finds one aggravating circumstance and no mitigating circumstances satisfies the Eighth Amendment). f proportionality review Although proportionality review is not constitutionally required, once a state adopts such a scheme," }, { "docid": "1976968", "title": "", "text": "The Death Penalty Without The Jury Having First Found Petitioner Guilty Of Being The Principal Offender As Required Pursuant To The Capital Specification Of Aggravated Murder In The Course Of Kidnapping, Pursuant To R.C. § 2929.01(A)(7) Violated Petitioner’s Rights As Guaranteed To Him By The Sixth, Eighth And Fourteenth Amendments To The United States Constitution. In Ground 5, Morales alleges that he was denied his right to a fair trial because the jury did not specifically find him to be the principal offender in the offenses. Respondent again asserts that Morales failed to raise this claim both on direct appeal and in the Petition. For this reason, Respondent argues, this claim has been procedurally defaulted. Morales replies as follows: What Respondent fails to recognize is that this claim was presented in Petitioner's Application for Reconsideration pursuant to Murnahan. Appendix to ROW. Exhibit EEEE. pp. 25-28. The court of appeals addressed the issue on its merits in its decision. Appendix to ROW, Exhibit GGGG, pp. 29-30. Because the court of appeals addressed the issue on the merits, there is no default. Traverse at 100. The Court observes that although the Eighth District addressed this issue on the merits, and that this ground has thus not been defaulted, a writ of habeas corpus cannot be granted with respect to Ground 5 unless Morales shows that the adjudica tion of the claim 1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or 2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. See 28 U.S.C. § 2254(d)(1) & (2) (as amended by AED-PA). Although Morales cites and relies upon two decisions of the Ohio Supreme Court (Waddy and Sneed) which seem to be on point, the seven Unites States Supreme Court decisions he also cites and relies upon do not appear to be directly on point. See Traverse at 98-99. Morales therefore does not satisfy the requirements" }, { "docid": "15464281", "title": "", "text": "death penalty, and is thus unconstitutional. This Court finds that Scott is applicable and does resolve at least some issues raised in the Ground for Relief. Additionally, the Ohio Supreme Court completed an independent re-weighing of the aggravated circumstances against the mitigating factors. The Ohio Supreme Court identified the aggravating circumstances to be “that Moore murdered Melvin Olinger while committing aggravated robbery and kidnapping” and “that Moore killed Olinger to escape detection or apprehension for kidnapping and robbery.” Moore, 81 Ohio St.3d at 42, 689 N.E.2d 1. This independent re-weighing cured any potential error by the trial court jury in counting a single aggravated factor twice. This Ground for Relief is DENIED. Twenty-Third Ground for Relief The Ohio courts that heard Petitioner Moore’s direct appeal and post-conviction proceedings lacked jurisdiction over those proceedings, violating Moore’s rights including his rights to due process and equal protection (Doc. 29 at 87.) Petitioner has withdrawn this Ground for Relief. (Doc. 115 at 151.) Twenty-Fourth Ground for Relief Execution by electrocution or lethal injection is unconstitutional. Forcing Petitioner Moore to choose the method of his execution is unconstitutional. Execution by either of these means, as well as forcing Petitioner Moore to choose the means, would violate Petitioner Moore’s rights, including his rights to due process, equal protection, and to be free from cruel and unusual punishment. (Doc. 29 at 88.) Petitioner has withdrawn this Ground for Relief as a habeas claim. (Doc. 115 at 152). Twenty-Fifth Ground for Relief Ohio’s death penalty scheme is unconstitutional and violated Petitioner Moore’s rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (Doc. 29 at 90.) Petitioner asserts that Ohio’s death penalty scheme is unconstitutional for a variety of reasons. Chief Magistrate Judge Merz determined that the following sub-claims were procedurally barred: there is a lack of individualized sentencing; the right to a jury trial is burdened; the mandatory submission of reports and evaluations violates rights; the definition of mitigating factors in O.R.C. § 2929.04(B)(7) violates the reliability component of the Eighth Amendment; O.R.C. § 2929.04(A)(7) is constitutionally invalid when used" }, { "docid": "12796237", "title": "", "text": "mitigating circumstances before sentencing petitioner. The fact that he carefully considered the weight to be given to those circumstances in light of all of the evidence can only be said to support his .decision. Therefore, relief as to this ground of the petition must be denied. C. Striking Aggravating Circumstances On appeal to the Supreme Court of Florida from the second sentencing, the Florida Supreme Court held that the trial judge improperly found two of the four statutory aggravating circumstances. However, the Court upheld the sentence of death based upon the remaining two circumstances. Section C of the petition alleges that “[sjince it cannot be determined to what extent these improper aggravating factors influenced the trial court’s sentencing decision, Petitioner’s sentence of death, based at least in part on these improperly considered factors, must be vacated.” The Court finds that petitioner has exhausted his state remedies as to this ground. It was raised as point III, section B, of petitioner’s second brief on appeal to the Florida Supreme Court. As stated previously, it was held insufficient to mandate reversal of the death sentence by the Florida Supreme Court. Dobbert v. State, 375 So.2d 1069, 1070-71 (Fla.1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980). Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir. 1981), one of the two cases cited by petitioner in support of this ground of the petition, is inapposite. In Stephens, the jury’s imposition of the death penalty was held incapable of review when it was determined by the appellate court that one of the statutory aggravating circumstances considered by the jury was unconstitutional. The sentence was incapable of review because the jury, in arriving at its sentence, did not make any specific finding as to which of the aggravating circumstances it found persuasive — there was no clue as to the jury’s reasoning simply because there was no record of it. Similarly, Henry v. Wainwright, 661 F.2d 56 (5th Cir. 1981), the second case cited by petitioner in support of this ground of the petition, involved" }, { "docid": "13702994", "title": "", "text": "was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause.... It follows that instead of its being permissible to hold, with the state court, that the verdict could be sustained if any one of the clauses of the statute were found to be valid, the necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld. Id. at 368, 51 S.Ct. at 535. The two challenged aggravating circumstances in this case do not suffer constitutional defects. In Gregg v. Georgia, supra, the Supreme Court held that a similar ag gravating circumstance in the Georgia statute was not unconstitutional on its face. The Court noted that this aggravating circumstance must simply be properly limited by an appellate court, where it serves as the basis for the death sentence. In the instant case, this aggravating circumstance, although found by the jury, was not the basis for appellate approval of the sentence. Since Louisiana law requires that only one aggravating circumstance be found in order to justify imposition of the death penalty, only one circumstance was reviewed. This aggravating circumstance has not been attacked to date in petitioner’s series of challenges to his conviction and sentence. The crucial inquiry in this and every case in which capital punishment has been ordered is whether the jury's sentencing discretion was properly channeled. E.g., Roberts v. Louisiana, supra. By statute, the jury’s discretion is limited to the extent that only a few types of killings permit consideration of the death penalty. When one or more of the statutory aggravating circumstances is found, the jury must balance this against the mitigating circumstances offered by defendant. Stephens v. Zant can be distinguished on the grounds that the unconstitutionally vague aggravating circumstances which the Stephens jury found to be present was one that required the jury to understand how to determine the meaning of facts and circumstances not before them as a part of the proof of that" }, { "docid": "11659003", "title": "", "text": "has been shown on this record. Indeed, the state introduced substantial testimony by two psychiatrists rebutting the defense’s claim that Johnson suffered from PTSD. The Florida Supreme Court, after reviewing the findings of the trial court regarding petitioner’s presentation of psychological evidence, reasoned that “[i]t was within the trial judge’s province to grant the two psychologists’ testimony little or no weight.” Thus, the trial court considered, and rejected, evidence of Johnson’s emotional and mental state as mitigating evidence. The district court correctly determined that the trial judge’s findings were fairly supported by the record. F. Automatic, Statutory Aggravating Circumstance. Petitioner was charged with premeditated murder and felony murder. The jury was charged on both counts and returned a general verdict. Johnson argues that imposition of the death penalty in his case was predicated upon an automatic finding of a statutory aggravating circumstance-the felony murder that formed the basis of his conviction-and, as such, violates the Eighth and Fourteenth Amendments. Petitioner raised this claim on direct appeal, but not in his first habeas petition. He now argues that new law, Sumner v. Shuman and Lowenfield v. Phelps, makes this claim appropriate for consideration in a second petition. In Shuman, the Court held that a state statute imposing a mandatory death sentence for a prison inmate convicted of murder while serving a life sentence without possibility of parole violates the Eighth and Fourteenth Amendments. Proof of a mandatory, aggravating circumstance, the Court held, “do[es] not provide an adequate basis on which to determine whether the death sentence is the appropriate sanction in any particular case.” The Court noted, further, that “[t]he Nevada mandatory capital-sentencing statute under which Shu-man was sentenced to death precluded a determination whether any relevant mitigating circumstances justified imposing on him a sentence less than death.” In the instant case, the death penalty for felony murder as a statutory aggravating factor was not mandatory. The jury, pursuant to the individualized sentencing procedure, was free to consider any mitigating evidence and to recommend a life sentence. Shuman, therefore, does not apply to revive petitioner’s claim. Neither does the Court’s decision" }, { "docid": "19805306", "title": "", "text": "Middle District of Louisiana seeking a stay of execution and an application for writ of habeas corpus. Thus, petitioner has exhausted his available state court remedies. Petitioner contends that his federally protected rights were violated in the following manner: (1) Three prospective jurors were erroneously excused for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). (2) Petitioner was deprived of the effective assistance of counsel at his sentencing hearing. (3) Petitioner’s death sentence violates the due process clause of the Fourteenth Amendment because there was insufficient evidence to support the jury’s finding that (a) the offender knowingly created a risk of death or great bodily harm to more than one person; and (b) the offense was committed in an especially heinous, atrocious or cruel manner. (4) The jury’s finding that the offense was committed in an especially heinous, atrocious or cruel manner was in violation of the decision rendered in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). (5) The Louisiana Supreme Court violated petitioner’s constitutional rights under the Eighth and Fourteenth Amendments when it only reviewed the evidentiary sufficiency of one of the three aggravating circumstances found by the jury. (6) The trial court erred in failing to provide the jury with limiting instructions on the statutory aggravating circumstances. (7) The Louisiana Supreme Court has adopted inconsistent standards of appellate review thereby increasing the likelihood of arbitrary and capricious sentencing in death cases. (8) The Louisiana Supreme Court erred in reviewing other first degree murder cases only in the district in which the sentence was imposed rather than reviewing first degree murder cases on a statewide basis. (9) The death sentence imposed upon petitioner was disproportionate and excessive under Louisiana law and the Eighth and Fourteenth Amendments to the Constitution of the United States. (10) The trial court erroneously instructed the jury concerning the mitigating circumstances and the role of such circumstances in determining a death sentence. (11) The Louisiana death" }, { "docid": "802714", "title": "", "text": "whether, at some point in the process, the requisite factual finding as to the defendant’s culpability has been made.” Id. at 387, 106 S.Ct. 689. “If it has,” the Court held, “the finding must be presumed correct by virtue of 28 U.S.C. § 2254(d), ... and unless the habeas petitioner can bear the heavy burden of overcoming the presumption, the court is obliged to hold that the Eighth Amendment as interpreted in Enmund [and Tison ] is not offended by the death sentence.” Id. at 387-88, 106 S.Ct. 689. b) The OCCA’s rejection of Gilson’s En-mund/Tison claim Gilson first raised his Enmund/Tison claim on direct appeal. The OCCA rejected the claim on the merits, stating as follows: [Gilson] contends in his second assignment of error that his death sentence violates the Eighth and Fourteenth Amendments, as well as Article II, § 9, of the Oklahoma Constitution because his conviction under 21 O.S.1991, § 701.7(C), failed to establish eligibility for the death sentence. In the first of several subpropositions, [Gilson] argues the State failed to prove he in fact killed, attempted to kill or was a major participant in a felony showing reckless indifference to human life. He contends that his death sentence can stand only if each of the theories underlying his murder conviction constitutionally justifies the imposition of a capital sentence. The State argues in response that the facts in this case are sufficient to support a finding that [Gilson] was eligible for the death sentence. Initially we note the record shows that after the verdicts were rendered, defense counsel moved to strike the Bill of Particulars arguing that [Gilson] was no longer constitutionally eligible for the death penalty because the jury failed to find unanimously that he committed any intentional act which led to the death of the victim. This objection has properly preserved the issue for appellate review. As addressed in Proposition I, the verdict in this case was a general verdict of guilt for first degree murder with the jury disagreeing as to the underlying factual basis. Therefore, we will review that factual basis in light" }, { "docid": "19183898", "title": "", "text": "habeas claim predates the Eighth Circuit Court of Appeals’ decision in Collins v. Lockhart, 754 F.2d 258 (1985), which suggests an important constitutional basis for the petitioner’s claim. The Court has been researching the issue. On August 22, 1986, petitioner’s counsel wrote a letter to the Court directly raising and arguing the point. It is therefore incumbent upon the Court to review the Collins case. Collins was charged with capital felony murder by an information alleging that he had killed John Welch “while engaged in the attempt and perpetration of robbery of John Welch.” Id. at 262. The Washington County, Arkansas jury found Collins guilty in 1974 as charged. At the conclusion of the sentencing phase and pursuant to Arkansas statutory law, the jury further found three aggravating circumstances present, that these aggravating circumstances outweighed the mitigating circumstance of Collins’ age, that these aggravating circumstances justified imposition of the death sentence, and that Collins should be executed for the offense. The three aggravating circumstances were (1) that Collins had committed a prior violent crime; (2) that he had created a substantial risk of death or serious physical injury to a person other than the victim; and (3) that he committed the murder for pecuniary gain. Id. at 262. The Arkansas Supreme Court affirmed his conviction and sentence upon remand from the Supreme Court of the United States which had ordered reconsideration in light of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Collins’ post-conviction petition for relief was subsequently denied. He then filed for federal hdbeas corpus relief in the Eastern District of Arkansas. The district court rejected all of the petitioner’s claims and denied the requested relief. On appeal, Collins’ case was initially sent back to the state supreme court for a determination of whether the sentence imposed was disproportionate when compared to those imposed in similar cases. The Arkansas Supreme Court held that it was not. Collins then went back to the United States District Court which again denied his claim. In his second appeal to the Eighth Circuit, Collins argued, inter alia," }, { "docid": "2684576", "title": "", "text": "a habeas hearing on petitioner’s request for federal habeas relief. At this hearing, petitioner’s counsel called two witnesses; in addition, petitioner was examined by counsel. Respondents called three witnesses, including petitioner’s counsel during his murder trial, Mr. John Putzel. Following this hearing, the Court took these issues under advisement. II. Waiver Respondents continue in their quest for a ruling by this Court that substantive review of petitioner’s application for a writ of habeas should be denied based on the fact that petitioner made a knowing and intelligent waiver of his federal habeas rights. However, as previously noted by this Court, this Court is unwilling to preclude petitioner for finally receiving a decision on the merits of his petition based on the technicality of any “waiver” concept. Moreover, as this Court has previously concluded, other than the Missouri Supreme Court, neither this Court nor the Eighth Circuit Court of Appeals has deemed petitioner’s previous “death wish” to be a waiver of any substantive review of the issues now raised in his habeas petition. Thus, the Court will now proceed to rule on the merits of those challenges in the petition. III. Constitutionality of Missouri Death Penalty Statute Petitioner’s first ground for habeas relief is an allegation that the statutory aggravating circumstance upholding his sentence is unconstitutionally vague in this case because the open-ended construction by the state court allows a jury to impose the death penalty in an arbitrary and capricious manner and fails to narrow the class of people eligible for the death penalty. For the following reasons, the Court finds this challenge to be without merit. To begin with, since the United States Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), claims of vagueness directed at aggravating circumstances defined in capital punishment statutes are analyzed under the Eighth Amendment and, characteristically, such challenges are upheld where the challenged provision fails adequately to inform juries what they must find to impose the death penalty and, as a result, leaves them and appellate courts with open-ended discretion as to what constitutes an" }, { "docid": "5550281", "title": "", "text": "death sentence is being “ ‘wantonly and freakishly’ imposed — and thus that the sentence is ... disproportionate within any recognized meaning of the Eighth Amendment.” Id. at 655-56, 110 S.Ct. 3047 (quoting McCleskey v. Kemp, 481 U.S. 279, 308, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Pulley v. Harris, 465 U.S. 37, 44, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984)). As proportionality review is not constitutionally required and petitioner has not presented any evidence to suggest that the Pennsylvania Supreme Court undertook its review in bad faith, this claim (Claim IX) does not provide a ground for habeas relief. 8. Aggravating Circumstance of Torture Petitioner contends that the aggravating circumstance of torture was improperly applied because the evidence at trial tended to show that petitioner and/or his co-defendant killed decedent, but did not show that decedent suffered torture (Claim XI). In addition, petitioner argues that the jury instructions on the aggravating circumstance of torture failed to inform the jury that it must find that each defendant possessed the intent to torture in order to find the aggravating circumstance applicable to both defendants. Respondents argue that this claim was not raised as a federal constitutional issue to the state courts and that any federal constitutional claim is thus procedurally defaulted. Respondents also contend that the coroner’s testimony proved that Milano had been tortured and that the state court’s disposition of this issue did not result in a decision that is contrary to, or an unreasonable application of, federal law. The Court first notes that this claim was presented as a state law issue on petitioner’s direct appeal and that petitioner’s counsel on direct appeal conceded that “[t]he trial court clearly charged the jury with the correct language of the circumstance as well as the requirement of specific intent to torture.” Br. for Appellant at 58 (July 19, 1989) (emphasis in original). The claim was not pursued on PCRA appeal. However, the Court concludes that the aspect of this claim regarding eviden-tiary sufficiency was automatically exhausted by the Pennsylvania Supreme Court’s mandatory review, which requires the court to conduct an examination" }, { "docid": "22252468", "title": "", "text": "Stynchcombe v. Floyd, 252 Ga. 113, 114, 311 S.E.2d 828, 830 (1984), which held that a jury instruction very similar to the one in this case did not “include language explaining to the jury that they could recommend a life sentence even if they found the existence of a statutory aggravating circumstance.” The jury in Floyd, like the jury at petitioner’s trial, had been instructed that upon finding an aggravating circumstance it was “authorized to consider” imposing a sentence of death. The Supreme Court of Georgia’s decision in Floyd therefore made it appear that petitioner’s jury instruction claim had been erroneously decided in his initial state habeas proceeding. We held this case in abeyance so that petitioner could present to the Georgia courts any claims he might have arising out of Stynchcombe v. Floyd. Petitioner then filed a new petition in state court seeking habeas relief. The state habeas court refused to reconsider the merits of petitioner’s jury instruction claim because the identical issue had been raised in a previous petition. The court held that Floyd did not represent a change in the law that would warrant the consideration of a subsequent petition but was merely an application of the same law un der which petitioner’s claim was adjudicated in his first state habeas petition. The petition was therefore dismissed as successive despite the fact that the state trial court had, in the first habeas proceeding, applied the law in a manner inconsistent with the Supreme Court of Georgia’s holding in Floyd. The Supreme Court of Georgia granted a certificate of probable cause to appeal. The court, agreeing with the trial court’s analysis, held that Floyd did not represent new law and that petitioner had not presented grounds sufficient to mandate reconsideration of a claim that had been raised in a previous petition. Accordingly, the Supreme Court of Georgia dismissed the petition as successive. We then received supplemental briefing and heard additional argument from counsel. We must determine whether the trial judge’s charge, taken as a whole, see Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38" }, { "docid": "22085744", "title": "", "text": "clear, we are unwilling to say that there is any one right way for a State to set up its capital sentencing scheme.” Spaziano, supra, at 464; see also Pulley v. Harris, 465 U. S. 37 (1984); Zant v. Stephens, 462 U. S. 862 (1983); Gregg v. Georgia, 428 U. S. 153, 195 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Accordingly, when .a federal habeas court reviews a claim that the death penalty has been imposed on one who has neither killed, attempted to kill, nor intended that a killing take place or lethal force be used, the court’s inquiry cannot be limited to an examination of jury instructions. Rather, the court must examine the entire course of the state-court proceedings against the defendant in order to determine whether, at some point in the process, the requisite factual finding as to the defendant’s culpability has been made. If it has, the finding must be presumed correct by virtue of 28 U. S. C. § 2254(d), see Sumner v. Mata, 449 U. S. 539 (1981), and unless the habeas petitioner can bear the heavy burden of overcoming the presumption, the court is obliged to hold that the Eighth Amendment as interpreted in Enmund is not offended by the death sentence. > I — I The Court of Appeals thus erred m focusing exclusively on the jury and in ordering a new sentencing hearing without inquiring whether the necessary finding of intent had been made by the trial court or by the state appellate court. The State argues that the Mississippi Supreme Court itself made a finding sufficient to satisfy Enmund in the course of its direct review of Bullock’s conviction and sentence. It relies on two separate statements in the court’s opinion. First, in responding to the claim of insufficient evidence, the court said that “[t]he evidence is overwhelming that appellant was present, aiding and assisting in the assault upon, and slaying of, Dickson.” 391 So. 2d, at 606. Second, in determining that the death penalty was not disproportionate to the sentences imposed in other cases, the court stated that" }, { "docid": "139319", "title": "", "text": "inquiry to objective factors. See supra note 8. . The eligibility test I set forth incorporates proportionality review, where state courts examine objectively whether the sentence received in a particular case is proportionate to the sentences received in factually similar cases. . The petitioner’s attorney failed to raise this claim on direct appeal. Under Virginia procedural law, the petitioner was thus barred from subsequently raising the claim in a collateral attack on his conviction. The Supreme Court rejected the petitioner’s argument that his appellate counsel’s ignorance, the perceived futility of raising the claim at the time of his appeal, or the alleged novelty of the claim was cause to excuse the procedural default. See Smith, 477 U.S. at 533-37, 106 S.Ct. at 2665-68. . The Court also assumed that a constitutional violation had occurred; in other words, the jury should not have heard the evidence that established the first of the statutory aggravating circumstances. . Under the Virginia death penalty scheme in place at the time the petitioner in Smith was sentenced, only one of the two statutory aggravating circumstances was necessary to support a death sentence. Smith, 248 S.E.2d at 145. The establishment of one statutory aggravating circumstance, however, did not mean, under Virginia law, that a defendant would receive a death sentence. The jury was at liberty to recommend a sentence of life imprisonment, even if the state established one or both of the statutory aggravating circumstances. Id. Following the jury’s recommendation, state law required the trial judge to determine whether the death penalty was \"appropriate and just”; if not, the judge was entitled to set aside the jury’s recommendation of death and impose a life sentence. Id. at 146. Moreover, on mandatory review of a death sentence, the Virginia Supreme Court was required to determine: (1) whether the sentence was imposed under the influence of passion, prejudice, or other arbitrary factors and (2) whether, considering similar cases, the penalty was excessive or disproportionate. Id. Without any indication to the contrary, the Supreme Court properly assumed that, under applicable state law, both statutory aggravating factors were necessary to" } ]

[ { "docid": "22703172", "title": "", "text": "receive a sentence which would give them freedom from custody and control prior to the expiration of the 15-year term.” 301 U. S., at 401-402. See also Greenfield v. Scafati, 277 F. Supp. 644 (Mass. 1967) (three-judge court), summarily aff’d, 390 U. S. 713 (1968) (affirming judgment of a three-judge court that found an ex post facto violation in a statute that eliminated the opportunity to accumulate gain time for the first six months following parole revocation as applied to an inmate whose crime occurred before the statute’s enactment). These settled propositions make perfectly clear that the retroactive application of a simple statute that changed the frequency of a statutorily mandated annual parole suitability hearing would constrict an inmate’s opportunity to earn early release and would thus constitute increased punishment in violation of the Ex Post Facto Clause. It is thus no surprise that nearly every Federal Court of Appeals and State Supreme Court to consider the issue has so held. See, e. g., 16 F. 3d 1001 (CA9 1994) (case below); Roller v. Cavanaugh, 984 F. 2d 120 (CA4), cert. dism’d, 510 U. S. 42 (1993); Akins v. Snow, 922 F. 2d 1558 (CA11), cert. denied, 501 U. S. 1260 (1991); Rodriguez v. United States Parole Commission, 594 F. 2d 170 (CA7 1979); State v. Reynolds, 642 A. 2d 1368 (N. H. 1994); Griffin v. State, 315 S. C. 285, 433 S. E. 2d 862 (1993), cert. denied, 510 U. S. 1093 (1994); Tiller v. Klincar, 138 Ill. 2d 1, 561 N. E. 2d 576 (1990), cert. denied, 498 U. S. 1031 (1991). The 1981 amendment at issue in this case, of course, is not such a simple statute. It is therefore necessary to consider whether the particular features of that amendment eliminate the ex post facto problems. II The first special feature that the majority identifies in the 1981 amendment, see ante, at 510, is that it applies only to the narrow class of prisoners who have “been convicted, in the same or different proceedings, of more than one offense which involves the taking of a life.” Cal." } ]

[ { "docid": "7197116", "title": "", "text": "years. In 1991, this Court held that the Board’s change in the parole reconsideration policy violated the Ex Post Facto Clause. Akins v. Snow, 922 F.2d 1558, 1565 (11th Cir. 1991) (overruling recognized in Swan v. Ray, 293 F.3d 1252, 1253 (11th Cir.2002)). As a result of this decision, the Parole Board reconsidered Brown’s parole in 1992. Parole was denied and reconsideration was scheduled for September 1995. Before the Board reconsidered Brown for parole in 1995, the Supreme Court issued California Dep’t of Corr. v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). Morales upheld a California statute amending parole procedures that decreased the frequency of parole reconsiderations. Shortly after Morales, the Georgia Parole Board approved a new policy in June 1995, providing that persons under life sentences, who were denied parole, could have their reconsider-ations set-off for up to eight years. Furthermore, the policy was made retroactive and applied to prisoners such as Brown. The Board again denied Brown parole in 1995, and rescheduled Brown’s next reconsideration for September 2000 pursuant to the new 1995 policy allowing reconsideration set-off for up to eight years. Brown was informed of the parole denial and reconsideration date in a letter from the Board on September 29,1995. The Board reconsidered Brown for parole in April 2001, and denied Brown parole. The Board set September 2007 as the next parole hearing for Brown. On February 4, 2002, Brown filed this § 1983 action challenging the April 2001 Parole Board decision which scheduled his next reconsideration for more than three years away. Brown argued that the policy violated the Ex Post Facto Clause and sought to have the Parole Board ordered to reconsider him immediately for parole and to apply hereinafter the three-year reconsideration rule which was in effect at the time of his original conviction. The district court granted the defendants’ motion for summary judgment. According to the district court, Brown’s § 1983 action was untimely because it was filed more than two years after the Parole Board changed its policy in 1995. II. DISCUSSION On appeal, Brown argues that his" }, { "docid": "23655309", "title": "", "text": "COX, Circuit Judge: I. FACTS AND PROCEDURAL HISTORY In October 1988, C.T. Akins and Jay Fate filed this action under 42 U.S.C. § 1983 seeking declaratory and injunctive relief or in the alternative compensatory and punitive damages, against Wayne Snow, chairman of the Georgia State Board of Pardons and Paroles (the Board). As the basis for their section 1983 action, Akins and Fate allege that the Board’s application of the 1986 parole rules and regulations to their cases violates their substantive due process rights under the Fourteenth Amendment and the ex post facto clause of the United States Constitution, art. I, § 10, cl. 1. Both appellants in this case are inmates serving life terms at the Georgia State Prison in Reidsville, Georgia. The crime for which Akins was convicted was committed in 1972; the crime for which Fate was convicted was committed in 1977. When these crimes were committed, the Board’s rules required the Board to initially consider an inmate serving a life term for parole after serving seven years of his life sentence. If the Board denied an inmate parole at this initial hearing, the rules required the Board thereafter to hold an annual hearing to reconsider its parole decision. In September 1980, the Board held Akins’s initial parole hearing and denied him parole. The Board reconsidered Akins for parole annually through 1986. In September 1986, the Board, pursuant to new rules, scheduled Akins for another parole reconsideration hearing in 1994. These new rules only require the Board to reconsider an inmate for parole once every eight years after the denial of parole. Fate received his first parole consideration hearing in July 1984. The Board refused to grant him parole at that time and deferred reconsideration of this decision until the following year. At the subsequent reconsideration hearing the Board again denied Fate parole but this time, pursuant to the new rules, did not schedule another reconsideration hearing until 1993. After the Board failed to hold a number of annual reconsideration hearings for Akins and Fate, they filed this action alleging a due process and ex post facto" }, { "docid": "14576438", "title": "", "text": "disclosing confidential sources of information or possible discouraging diagnostic opinions. Ga. Comp. R. & Regs. r.\"475-3-.05.(2). The Board is not required to make any particularized findings supporting its conclusion that, as to the inmate under consideration, “it is not reasonable to expect that parole would be granted” during the intervening eight years before the next hearing — indeed, as the facts of this case indicate, the Board would be within its discretion to say next to nothing. Nor is the Board required to have any sort of hearing on this question, much less the “full hearing” required by the California statute approved by the Supreme Court in Morales. Unlike the California provision at issue in Morales, which established an annual hearing as a default but conferred on the Board of Prison Terms the authority to “defer the next hearing up to two years more depending on the circumstances,” the Georgia regulation simply sets the default for affected inmates at reconsideration “at least every eight years.” Eight years is a long time. Much can happen in the course of eight years to affect the determination that an inmate would be suitable for parole. The Morales Court emphasized that, because an inmate’s “parole release date [often] comes at least several years after a finding of suitability,” and because the Board “retains the discretion to expedite the release date of such a prisoner,” a prisoner affected by the amended California statute who can demonstrate “that he was ‘suitable’ for parole two years prior to such a finding by the Board might well be entitled to secure a[n earlier] release date that reflects that fact.” Morales, 514 U.S. at 513, 115 S.Ct. 1597. The eight-year period specified in r. 475-3-05.(2), however, is simply too long to allow us to say that an inmate who would have been able to demonstrate suitability for parole in the years between reconsideration hearings would be able to “cure” this delay through petitioning for an earlier release date. There is therefore a “sufficient risk” that the amended Georgia regulation would “increas[e] the measure of punishment attached to the covered" }, { "docid": "7197115", "title": "", "text": "PER CURIAM: Appellant Adrian Brown is a pro se state prisoner serving a life sentence for murder since 1983. Brown filed this § 1983 action, claiming that the retroactive application of a new Georgia parole policy violated the Ex Post Facto Clause of the United States Constitution. The district court dismissed Brown’s § 1983 complaint as untimely. After review, we affirm. I. BACKGROUND On January 10, 1983, Brown was convicted of murder and sentenced to life imprisonment. When Brown committed his crime, the Georgia Parole Board’s (“Parole Board” or “Board”) rules required that the Board initially consider a life-term inmate for parole after serving seven years of his life sentence. If the Board denied an inmate parole at this initial hearing, the rules required that the Board thereafter reconsider its parole decision every three years. In November 1989, the Parole Board first considered Brown for parole. The Board denied Brown parole, and scheduled Brown’s next parole hearing for September 1997 pursuant to a new Board policy requiring the Board to reconsider parole only every eight years. In 1991, this Court held that the Board’s change in the parole reconsideration policy violated the Ex Post Facto Clause. Akins v. Snow, 922 F.2d 1558, 1565 (11th Cir. 1991) (overruling recognized in Swan v. Ray, 293 F.3d 1252, 1253 (11th Cir.2002)). As a result of this decision, the Parole Board reconsidered Brown’s parole in 1992. Parole was denied and reconsideration was scheduled for September 1995. Before the Board reconsidered Brown for parole in 1995, the Supreme Court issued California Dep’t of Corr. v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). Morales upheld a California statute amending parole procedures that decreased the frequency of parole reconsiderations. Shortly after Morales, the Georgia Parole Board approved a new policy in June 1995, providing that persons under life sentences, who were denied parole, could have their reconsider-ations set-off for up to eight years. Furthermore, the policy was made retroactive and applied to prisoners such as Brown. The Board again denied Brown parole in 1995, and rescheduled Brown’s next reconsideration for September 2000 pursuant" }, { "docid": "13753483", "title": "", "text": "“Reconsideration of those inmates serving life sentences who have been denied parole shall take place at least every eight years.” Ga. Comp. R. & Regs. r. 475-3-.05(2). We review “a district court’s grant of summary judgment de novo.” Harris v. Hammonds, 217 F.3d 1346, 1347 (11th Cir.2000) (per curiam). A dismissal for frivolity under § 1915(e)(2)(B)® is reviewed for abuse of discretion. Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.2001). In Bilal, we held that a “claim is frivolous if it is without arguable merit either in law or fact.” Id. Jones’s due process claim is foreclosed by our holding in Sultenfuss v. Snow, 35 F.3d 1494 (11th Cir.1994) (en banc), that a Georgia inmate has no liberty interest in parole. It also is well-settled that there is no federal constitutional right to parole. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Only when a state maintains a parole system that creates a legitimate expectation of parole does it establish a liberty interest in parole that is subject to the protections of the Due Process Clause. Id. at 12, 99 S.Ct. 2100. While we have held that the use of false information in a parole file can be a due process violation, prisoners cannot make a conclusory allegation regarding the use of such information as the basis of a due process claim. Monroe v. Thigpen, 932 F.2d 1437, 1442 (11th Cir.1991). Without evidence of the Board’s reliance on false information, a prisoner cannot succeed. As Jones did not come forward with any false information relied on by the Board, the district court did not err in dismissing his due process claims under § 1915(e)(2)(B)®. As to the grant of summary judgment, we have held that not every retroactive procedural change in the parole process is prohibited; rather, the prisoner must show that the regulation, “'as applied to his sentence,’ ‘created a significant risk of increasing his punishment.’ ” Harris, 217 F.3d at 1350 (quoting Garner v. Jones, 529 U.S. 244, 255, 120 S.Ct. 1362, 146 L.Ed.2d 236" }, { "docid": "14576444", "title": "", "text": "increasing the quantum of punishment.” Lynce, 519 U.S. at ——, 117 S.Ct. at 897. For the foregoing reasons, we conclude that Akins has not been overruled. Indeed, we find that the Supreme Court’s reasoning in Morales and Lynce reaffirms the correctness of our holding in that ease. Thus, pursuant to Morales, Lynce, and Akins, we REVERSE the district court’s grant of the defendant’s motion for summary judgment on the plaintiffs ex post facto claim, and REMAND the case to the district court for proceedings consistent herewith. . As amended, the regulation relating to frequency of parole reconsideration reads as follows: Reconsideration of those inmates serving life sentences who have been denied parole shall take place at least every eight years. The Board will inform inmates denied parole of the reasons for such denial without disclosing confidential sources of information or possible discouraging diagnostic opinions. Ga. Comp. R. & Regs. r. 475-3-05.(2). . Miller v. Florida, 482 U.S. 423, 429, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182 (1937); Rooney v. North Dakota, 196 U.S. 319, 324-25, 25 S.Ct. 264, 49 L.Ed. 494 (1905); In re Medley, 134 U.S. 160, 171, 10 S.Ct. 384, 33 L.Ed. 835 (1890); Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1866); Calder v. Bull, 3 U.S. (DalL.) 386, 390, 1 L.Ed. 648 (1798). . First, the law must be \"retrospective, that is, it must apply to events occurring before its enactment....” Weaver, 450 U.S. at 29, 101 S.Ct. 960. Second, the law must \"disadvantage the offender affected hy it.” Id. (quoted in Akins, 922 F.2d at 1563). . In Akins, we addressed three preliminary questions as a predicate to making the ultimate ex post facto determination. Specifically, we found that: (1) Georgia's administrative regulation governing parole reconsideration is a \"law” for purposes of the Ex Post Facto Clause, see Akins, 922" }, { "docid": "14576422", "title": "", "text": "his 1982 conviction, and parole was denied. At that time, rather than scheduling Jones for a rehearing after three years as provided for by the Board rules at the time of the offense, the Board scheduled Jones for reconsideration eight years later, in 1997. In the meantime, however, this Court decided Akins v. Snow, 922 F.2d 1558 (11th Cir.1991), in which it held that the retroactive application of r. 475-3-.05.(2) violated the Ex Post Facto Clause of Article I, § 10 of the United States Constitution. As a result, Jones was reconsidered for parole in three year intervals, in 1992 and again in 1995. In 1995, however, the Supreme Court decided California Dep’t of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). The Board read Morales to overrule Akins, and 'as a consequence, rather than scheduling Jones’ next consideration for 1998, the Board scheduled Jones for reconsideration in 2003 (eight years later). In 1995, following the Board’s rescheduling of his next parole reconsideration for 2003, Jones filed a pro se § 1983 action in the Northern District of Georgia, alleging that the Board’s action violated several of his constitutional rights. The district court dismissed his complaint as frivolous on all counts. Jones appealed the dismissal, and a panel of this Court reversed in part, finding Jones’ allegation of an Ex Post Facto Clause violation not to be frivolous. On remand, both parties filed motions for summary judgment. The district court granted defendant’s motion for summary judgment and denied Jones’ motion on the ground that Morales had overruled Akins. Jones now appeals. II. Discussion The Constitution provides that “[n]o State shall ... pass any ... ex post facto Law....” U.S. Const, art. I, § 10, cl. 1. At the time of the drafting of the Constitution, the phrase “ ‘ex post facto law’ was a term of art with a well-established meaning.” Akins v. Snow, 922 F.2d at 1560. In Calder v. Bull, 3 U.S. (Dall.) 386, 1 L.Ed. 648 (1798), the Supreme Court “identified several legislative acts that clearly implicated the core concerns” with respect" }, { "docid": "21262678", "title": "", "text": "its business. These guidelines are not law, but guideposts which assist the Parole Commission (and which assisted the Board of Parole) in exercising its discretion. Nor do these guidelines have the characteristics of law. They are not fixed and rigid, but are flexible. The Commission remains free to make parole decisions outside of these guidelines. Id. at 1335. Although not previously addressed by this court in a published opinion, we now conclude that Ruip should no longer be followed because it is inconsistent with the Supreme Court’s decision in Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). In Gamer, the Court considered an ex post facto challenge to the retroactive application of a Georgia regulation permitting the extension of intervals between parole violations. Id. at 247, 120 S.Ct. 1362. Under Georgia law, the state’s parole board was required to consider inmates serving life sentences for parole after seven years. Id. (citing Ga. Code ANN. § 42-9-45(b) (1982)). At the time the Gamer respondent committed his second offense, the parole board’s regulations required parole reconsiderations to take place every three years. Id. In 1985, after the respondent had begun serving his second life sentence, the parole board amended its rules and regulations to provide that “reconsideration of those inmates serving life sentences who have been denied parole shall take place at least every eight years.” Id. (quoting Ga. Comp. R. & Regs., Rule 475-3-.05(2) (1985)). The Parole Board considered the respondent for parole in 1989, seven years after his 1982 conviction. Id. After denying release, reconsideration was set for 1997, eight years later and consistent with Rule 475-3-.05(2). Id. The Court concluded that, on its face, the new parole board regulation did not pose a significant risk of lengthening the respondent’s time of imprisonment. Id. at 256, 120 S.Ct. 1362. The Court noted two important aspects of the new regulation. First, the amendment “vests the Parole Board with discretion as to how often to set an inmate’s date for reconsideration, with eight years for the maximum.” Id. at 254,120 S.Ct. 1362 (quoting Ga. Comp. R. &" }, { "docid": "13753482", "title": "", "text": "PER CURIAM: Larry Jones, a Georgia prisoner serving a life sentence and proceeding pro se, appeals the 28 U.S.C. § 1915(e)(2)(B)® dismissal of his due process claims and the grant of summary judgment on his equal protection and ex post facto claims in favor of defendant members of the Georgia Board of Pardons and Paroles (“the Board”) in this 42 U.S.C. § 1983 action. Jones asserts several claims. First, he asserts that the Board’s failure to grant face-to-face meetings as part of his parole procedure and its use of false information in his file constituted a due process violation. Second, he appears to assert that the Board discriminated against him on the basis of poverty in violation of the Equal Protection Clause by failing to adhere to its own rules and procedures. Finally, Jones alleges that the 1986 amendments to the Parole Board Rules and Regulations governing the frequency of reconsideration hearings for inmates serving a life sentence constitute a violation of the ex post facto clause and are thus invalid. The amended rules provide, “Reconsideration of those inmates serving life sentences who have been denied parole shall take place at least every eight years.” Ga. Comp. R. & Regs. r. 475-3-.05(2). We review “a district court’s grant of summary judgment de novo.” Harris v. Hammonds, 217 F.3d 1346, 1347 (11th Cir.2000) (per curiam). A dismissal for frivolity under § 1915(e)(2)(B)® is reviewed for abuse of discretion. Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.2001). In Bilal, we held that a “claim is frivolous if it is without arguable merit either in law or fact.” Id. Jones’s due process claim is foreclosed by our holding in Sultenfuss v. Snow, 35 F.3d 1494 (11th Cir.1994) (en banc), that a Georgia inmate has no liberty interest in parole. It also is well-settled that there is no federal constitutional right to parole. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Only when a state maintains a parole system that creates a legitimate expectation of parole does it establish a liberty" }, { "docid": "14576420", "title": "", "text": "BARKETT,.Circuit Judge: Robert Jones appeals the district court’s order granting summary judgment to defendants J. Wayne Garner and other former and current members of the Georgia Board of Pardons and Paroles (“the Board”) on Jones’ claim that the retroactive application of amendments-to the Georgia regulations governing parole consideration, Ga. Comp. R. & Regs. r. 475-3-05.(2) (1986), violated the Ex Post Facto Clause of Article I, § 10 of the United States Constitution. In Akins v. Snow, 922 F.2d 1558 (11th Cir.1991), we held that retroactive application of r. 475-3-05(2) violated this clause’s prohibition on ex post facto laws. After the Supreme Court decided California Dep’t of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), in which it held that the retroactive application of a legislative amendment to the California parole regulations that decreased the frequency of parole suitability hearings in certain circumstances did not represent an ex post facto violation, the Board concluded that Akins had been overruled and scheduled Jones’ next hearing for 2003 pursuant to the rule promulgated in 1986. The district court agreed that Morales overruled Akins, and granted summary judgment to the defendants. We find that Morales reinforced our holding in Akins, and pursuant to Morales and Akins, we REVERSE. I. Background The facts of this case are not in dispute. In July 1974, Jones was sentenced in the Superior Court of Fulton County, Georgia, to life in prison for murder. In August of 1982 he was again sentenced in the same court to life in prison for murder on subsequent charges. At the time of Jones’ second offense, the state regulations governing parole consideration required that he first be considered for parole after seven years and, if parole was not granted at that time, that he be considered every three years thereafter. After Jones was incarcerated but before he was initially considered for parole, the Board amended its rules to require that parole reconsideration take place only once every eight years. See Ga. Comp. R. & Regs. r. 475-3-05.(2). Jones was initially considered for parole in 1989, seven years after" }, { "docid": "14576443", "title": "", "text": "parole reconsideration of inmates by the South Carolina and Virginia statutes are thus considerably shorter than the lengthy eight-year gap between parole reconsiderations authorized by the Georgia provision, thus creating less of a risk than the Georgia statute that “the measure of punishment” imposed on affected inmates will be “increased.” Morales, 514 U.S. at 513, 115 S.Ct. 1597. 'Whether a particular provision violates the prohibition on ex post facto laws is a “matter of ‘degree.’ ” Morales, 514 U.S. at 509, 115 S.Ct. 1597 (quoting Beazell, 269 U.S. at 171, 46 S.Ct. 68). Given the length of time that the Georgia provision requires inmates to wait between parole consideration hearings and the absence of safeguards such as a “full hearing and review of all the relevant facts” and an obligation on the part of the Board to state particularized facts relating to the inmate’s likely future parole eligibility, we cannot conclude — as we must, to find no ex post facto violation — that the amended regulation “ha[s] neither the purpose nor the effect of increasing the quantum of punishment.” Lynce, 519 U.S. at ——, 117 S.Ct. at 897. For the foregoing reasons, we conclude that Akins has not been overruled. Indeed, we find that the Supreme Court’s reasoning in Morales and Lynce reaffirms the correctness of our holding in that ease. Thus, pursuant to Morales, Lynce, and Akins, we REVERSE the district court’s grant of the defendant’s motion for summary judgment on the plaintiffs ex post facto claim, and REMAND the case to the district court for proceedings consistent herewith. . As amended, the regulation relating to frequency of parole reconsideration reads as follows: Reconsideration of those inmates serving life sentences who have been denied parole shall take place at least every eight years. The Board will inform inmates denied parole of the reasons for such denial without disclosing confidential sources of information or possible discouraging diagnostic opinions. Ga. Comp. R. & Regs. r. 475-3-05.(2). . Miller v. Florida, 482 U.S. 423, 429, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct." }, { "docid": "22740590", "title": "", "text": "Justice Kennedy delivered the opinion of the Court. We granted certiorari to decide whether the retroactive application of a Georgia law permitting the extension of intervals between parole considerations violates the Ex Post Fasto Clause. The Court of Appeals found that retroactive application of the change in the law was necessarily an ex post facto violation. In disagreement with that determination, we reverse its judgment and remand for further proceedings. t — I In 1974 respondent Robert L. Jones began serving a life sentence after Ms conviction for murder in the State of Georgia. He escaped from prison some five years later and, after being a fugitive for over two years, committed another murder. He was apprehended, convicted, and in 1982 sentenced to a second life term. Under Georgia law, at all times relevant here, the State’s Board of Pardons and Paroles (Board or Parole Board) has been required to consider inmates serving life sentences for parole after seven years. Ga. Code Ann. §42-9-45(b) (1982). The issue in this case concerns the interval between proceedings to reconsider those inmates for parole after its initial denial. At the time respondent committed his second offense, the Board’s Rules required reconsiderations to take place every three years. Ga. Rules & Regs., Rule 475-3-.05(2) (1979). In 1985, after respondent had begun serving his second life sentence, the Parole Board, acting under its authority to “set forth ... the times at which periodic reconsideration [for parole] shall take place,” Ga. Code . Ann. §42-9-45(a) (1982), amended its Rules to provide that “Reconsideration of those inmates serving life sentences who have been denied parole shall take place at least every eight years,” Ga. Rules & Regs., Rule 475-3-.05(2) (1985). The Parole Board considered respondent for parole in 1989, seven years after the 1982 conviction. It denied release and, consistent with the 1985 amendment to Rule 475-3-05(2), reconsideration was set for 1997, eight years later. In 1991, however, the United States Court of Appeals for the Eleventh Circuit held that retroactive application of the amended Rule violated the Ex Post Facto Clause. Akins v. Snow, 922 F." }, { "docid": "22740591", "title": "", "text": "to reconsider those inmates for parole after its initial denial. At the time respondent committed his second offense, the Board’s Rules required reconsiderations to take place every three years. Ga. Rules & Regs., Rule 475-3-.05(2) (1979). In 1985, after respondent had begun serving his second life sentence, the Parole Board, acting under its authority to “set forth ... the times at which periodic reconsideration [for parole] shall take place,” Ga. Code . Ann. §42-9-45(a) (1982), amended its Rules to provide that “Reconsideration of those inmates serving life sentences who have been denied parole shall take place at least every eight years,” Ga. Rules & Regs., Rule 475-3-.05(2) (1985). The Parole Board considered respondent for parole in 1989, seven years after the 1982 conviction. It denied release and, consistent with the 1985 amendment to Rule 475-3-05(2), reconsideration was set for 1997, eight years later. In 1991, however, the United States Court of Appeals for the Eleventh Circuit held that retroactive application of the amended Rule violated the Ex Post Facto Clause. Akins v. Snow, 922 F. 2d 1558, cert. denied, 501 U. S. 1260 (1991). In compliance with that decision, in effect reinstating its earlier 3-year Rule, the Parole Board reconsidered respondent’s case in 1992 and in 1995. Both times parole was denied, the Board citing for its action respondent’s “multiple offenses” and the “circumstances and nature of” the second offense. App. 53-54. In 1995 the Parole Board determined that our decision in California Dept. of Corrections v. Morales, 514 U. S. 499 (1995), had rejected the rationale underlying the Eleventh Circuit’s decision in Akins. The Board resumed scheduling parole reconsiderations at least every eight years, and so at respondent’s 1995 review it set the next consideration for 2003. Had the Board wished to do so, it could have shortened the interval, but the 8~year period was selected based on respondent’s “multiple offenses” and the “circumstances and nature of” his second offense. App. 54. Respondent, acting pro se, brought this action under Rev. Stat. § 1979, 42 U. S. C. § 1983, claiming, inter alia, the amendment to Rule 475-3-.05(2) violated" }, { "docid": "14576424", "title": "", "text": "to ex post facto laws that existed at the time the Constitution was written. Akins, 922 F.2d at 1560-61. Included in such legislative acts was any law “... that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Akins, 922 F.2d at 1560-61 (quoting Calder, 3 U.S. (Dall.) at 390 (emphasis in original)). The Supreme Court’s ex post facto rulings have continued to adhere to the original principle that laws with this effect violate the Constitution’s ex post facto prohibition. See id. (collecting cases). A. Akins v. Snow In Akim, this Court considered an ex post facto challenge to the retroactive application of the amendments to Georgia’s regulations governing parole consideration at issue here, see Ga. Comp. R. & Regs. r. 475-3-05.(2), and held such application to violate the proscription against laws ‘“that chmge[] the punishment, and inflict!] a greater punishment than the law annexed to the crime when committed.’” Akins, 922 F.2d at 1560-61 (quoting Colder, 3 U.S. (Dall.) at 390 (emphasis in original)). When the crimes for which the petitioners in Akins were convicted were committed, “the Board’s rules required the Board to initially consider an inmate serving a life term for parole after serving seven years of his life sentence.” Id. at 1560. If the inmate was denied parole at that time, he would receive reconsideration every year thereafter. See id. The regulation was subsequently amended so that “[parole reconsideration of those inmates serving life sentences who have been denied parole shall take place at least every eight years.” Ga. Comp. R. & Regs. r. 475-3-.05.(2). Applying the two-pronged test for Ex Post Facto Clause violations established by the Supreme Court in Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), we found both that the Georgia regulation was retroactive and that, by creating significant delays between parole reconsideration hearings, the application of the regulation “substantially disadvantages a prisoner.” Akins, 922 F.2d at 1564. B. California Dep’t of Corrections v. Morales and Lynce v. Mathis Four years later, the Supreme Court entertained an ex" }, { "docid": "14576437", "title": "", "text": "saving time and money and not to “increas[e] the quantum of punishment.” Lynce, 519 U.S. at -, 117 S.Ct. at 897. The Morales Court emphasized that safeguards built into the California provision would ensure that retroactive application would not extend the sentences of those prisoners who would be otherwise eligible for parole in the years between hearings. In particular, the Court noted the statutory requirement that “the [California Board of Prison Terms] must conduct ‘a full hearing and review” of all relevant facts, and state the bases for its finding” that “ ‘it is not reasonable to expect that parole would be granted at a hearing during the following [two] years.” ” Morales, 514 U.S. at 511, 115 S.Ct. 1597 (quoting Cal.Penal Code Ann. § 3041.5(b)(2)(West 1982)). The same cannot be said for the Georgia regulation. It reads, in its entirety, Reconsideration of those inmates serving life sentences who have been denied parole shall take place at least every eight years. The Board will inform inmates denied parole of the reasons for such denial without disclosing confidential sources of information or possible discouraging diagnostic opinions. Ga. Comp. R. & Regs. r.\"475-3-.05.(2). The Board is not required to make any particularized findings supporting its conclusion that, as to the inmate under consideration, “it is not reasonable to expect that parole would be granted” during the intervening eight years before the next hearing — indeed, as the facts of this case indicate, the Board would be within its discretion to say next to nothing. Nor is the Board required to have any sort of hearing on this question, much less the “full hearing” required by the California statute approved by the Supreme Court in Morales. Unlike the California provision at issue in Morales, which established an annual hearing as a default but conferred on the Board of Prison Terms the authority to “defer the next hearing up to two years more depending on the circumstances,” the Georgia regulation simply sets the default for affected inmates at reconsideration “at least every eight years.” Eight years is a long time. Much can happen in" }, { "docid": "22740592", "title": "", "text": "2d 1558, cert. denied, 501 U. S. 1260 (1991). In compliance with that decision, in effect reinstating its earlier 3-year Rule, the Parole Board reconsidered respondent’s case in 1992 and in 1995. Both times parole was denied, the Board citing for its action respondent’s “multiple offenses” and the “circumstances and nature of” the second offense. App. 53-54. In 1995 the Parole Board determined that our decision in California Dept. of Corrections v. Morales, 514 U. S. 499 (1995), had rejected the rationale underlying the Eleventh Circuit’s decision in Akins. The Board resumed scheduling parole reconsiderations at least every eight years, and so at respondent’s 1995 review it set the next consideration for 2003. Had the Board wished to do so, it could have shortened the interval, but the 8~year period was selected based on respondent’s “multiple offenses” and the “circumstances and nature of” his second offense. App. 54. Respondent, acting pro se, brought this action under Rev. Stat. § 1979, 42 U. S. C. § 1983, claiming, inter alia, the amendment to Rule 475-3-.05(2) violated the Ex Post Facto Clause. The suit was filed against individual members of the Parole Board, petitioners in this Court. Respondent requested leave to conduct discovery to support his claim, but the District Court denied the motion and entered summary judgment for petitioners. The court determined the amendment to Rule 475-3- 05(2) “change[dj only the timing between reconsideration hearings” for inmates sentenced to life in prison, thereby “relieving the Board of the necessity of holding parole hearings for prisoners who have no reasonable chance of being released.” App. to Pet. for Cert. 27a. Because the Parole Board’s policies permit inmates, upon a showing of “a change in their circumstance or where the Board receives new information,” App. 56, to receive expedited reconsideration for parole, the court further concluded the amendment created “ ‘only the most speculative and attenuated possibility’ ” of increasing a prisoner’s measure of punishment, App. to Pet. for Cert. 27a (quoting Morales, supra, at 509). The Court of Appeals reversed, finding the amended Georgia Rule distinguishable in material respects from the California" }, { "docid": "14576421", "title": "", "text": "in 1986. The district court agreed that Morales overruled Akins, and granted summary judgment to the defendants. We find that Morales reinforced our holding in Akins, and pursuant to Morales and Akins, we REVERSE. I. Background The facts of this case are not in dispute. In July 1974, Jones was sentenced in the Superior Court of Fulton County, Georgia, to life in prison for murder. In August of 1982 he was again sentenced in the same court to life in prison for murder on subsequent charges. At the time of Jones’ second offense, the state regulations governing parole consideration required that he first be considered for parole after seven years and, if parole was not granted at that time, that he be considered every three years thereafter. After Jones was incarcerated but before he was initially considered for parole, the Board amended its rules to require that parole reconsideration take place only once every eight years. See Ga. Comp. R. & Regs. r. 475-3-05.(2). Jones was initially considered for parole in 1989, seven years after his 1982 conviction, and parole was denied. At that time, rather than scheduling Jones for a rehearing after three years as provided for by the Board rules at the time of the offense, the Board scheduled Jones for reconsideration eight years later, in 1997. In the meantime, however, this Court decided Akins v. Snow, 922 F.2d 1558 (11th Cir.1991), in which it held that the retroactive application of r. 475-3-.05.(2) violated the Ex Post Facto Clause of Article I, § 10 of the United States Constitution. As a result, Jones was reconsidered for parole in three year intervals, in 1992 and again in 1995. In 1995, however, the Supreme Court decided California Dep’t of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). The Board read Morales to overrule Akins, and 'as a consequence, rather than scheduling Jones’ next consideration for 1998, the Board scheduled Jones for reconsideration in 2003 (eight years later). In 1995, following the Board’s rescheduling of his next parole reconsideration for 2003, Jones filed a pro se" }, { "docid": "21262679", "title": "", "text": "regulations required parole reconsiderations to take place every three years. Id. In 1985, after the respondent had begun serving his second life sentence, the parole board amended its rules and regulations to provide that “reconsideration of those inmates serving life sentences who have been denied parole shall take place at least every eight years.” Id. (quoting Ga. Comp. R. & Regs., Rule 475-3-.05(2) (1985)). The Parole Board considered the respondent for parole in 1989, seven years after his 1982 conviction. Id. After denying release, reconsideration was set for 1997, eight years later and consistent with Rule 475-3-.05(2). Id. The Court concluded that, on its face, the new parole board regulation did not pose a significant risk of lengthening the respondent’s time of imprisonment. Id. at 256, 120 S.Ct. 1362. The Court noted two important aspects of the new regulation. First, the amendment “vests the Parole Board with discretion as to how often to set an inmate’s date for reconsideration, with eight years for the maximum.” Id. at 254,120 S.Ct. 1362 (quoting Ga. Comp. R. & Regs., Rule 475-3-.05(2) (1985)) (“Reconsideration ... shall take place at least every eight years.”). Second, the parole board’s policies permit “expedited parole reviews in the event of a change in their circumstances or where the Board receives new information that would warrant a sooner review.” Id. These characteristics were significant because they “permit a more careful and accurate exercise of the discretion the Board has had from the outset.” Id. “The policy enables the Board to put its resources to better use, to ensure that those prisoners who should receive parole come to its attention.” Id. There are several aspects of the Supreme Court’s decision in Gamer that con tradict our ex post facto jurisprudence and affect Ohio’s parole guidelines at issue here. First, the Court made clear that guidelines that affect discretion, rather than mandate outcomes, are nevertheless subject to ex post facto scrutiny: “The presence of discretion does not displace the protections of the Ex Post Facto Clause, however.” Id. at 253, 120 S.Ct. 1362; Dyer, 465 F.3d at 288 (noting that Gamer" }, { "docid": "23655328", "title": "", "text": "Board’s rules required that Akins and Fate be given an annual reconsideration hearing after a denial of parole. The record also establishes that since 1986 Akins and Fate have not had an annual reconsideration hearing. Based on these facts and our discussion of the law, we find that the Board’s actions violated the ex post facto clause. Therefore, Akins and Fate were entitled to summary judgment as a matter of law and the district court erred by not granting their summary judgment motion. III. CONCLUSION We REVERSE the district court’s grant of summary judgment for Snow and REMAND the case for further proceedings consistent with this opinion. REVERSED AND REMANDED. . Michael Schroeder was also a party to the suit, but he did not appeal. . Because Akins and Fate challenge the parole decision process, specifically their eligibility for parole, and not the denial of parole, they may properly bring a claim under § 1983 without first bringing a habeas corpus claim and exhausting their state remedies. See Gwin v. Snow, 870 F.2d 616 (11th Cir.1989). Snow makes no argument to the contrary. . Georgia State Board of Pardon and Paroles rules and regulations (Board rules), ch. 475-3.-06(3) (1972). . Board rules, ch. 475-3-.05(2) (1969). . Board rules, ch. 475-3-.05(2) (1986). . Id. . We find the court’s reliance on Damiano misplaced. Damiano involved a change in the factors used to determine if a prisoner would be released on parole. Id. at 931. Damiano did not involve an alleged change in parole eligibility- . We use the terms parole consideration hearing and parole reconsideration hearing to include the Board’s interview of the inmate, the Board’s investigation of the inmate, the Board’s discussion of the inmate and the Board’s subsequent decision whether the inmate should be paroled. See, e.g., O.C.G.A. § 42-9-43 (1989). . The only distinction between a parole consideration hearing and a parole reconsideration hearing is that a parole consideration hearing is the term used to describe an inmate’s initial parole hearing and a parole reconsideration hearing is the term used to describe any subsequent parole hearing. . See" }, { "docid": "14576425", "title": "", "text": "crimes for which the petitioners in Akins were convicted were committed, “the Board’s rules required the Board to initially consider an inmate serving a life term for parole after serving seven years of his life sentence.” Id. at 1560. If the inmate was denied parole at that time, he would receive reconsideration every year thereafter. See id. The regulation was subsequently amended so that “[parole reconsideration of those inmates serving life sentences who have been denied parole shall take place at least every eight years.” Ga. Comp. R. & Regs. r. 475-3-.05.(2). Applying the two-pronged test for Ex Post Facto Clause violations established by the Supreme Court in Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), we found both that the Georgia regulation was retroactive and that, by creating significant delays between parole reconsideration hearings, the application of the regulation “substantially disadvantages a prisoner.” Akins, 922 F.2d at 1564. B. California Dep’t of Corrections v. Morales and Lynce v. Mathis Four years later, the Supreme Court entertained an ex post facto challenge to retroactive application of an amended California Department of Corrections regulation governing parole eligibility. See California Dep’t of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). At the time that Morales committed the crime for which he was incarcerated, the California parole consideration regulations specified that, once an inmate became eligible for an initial parole consideration hearing, if the inmate was denied parole at that time, he or she would be eligible for annual reconsideration. See id. at 503, 115 S.Ct. 1597. Subsequent to Morales’ sentencing, however, the California legislature amended the regulation to authorize the Board of Prison Terms “to defer subsequent suitability hearings for up to three years if the prisoner has been convicted of ‘more than one offense which involves the taking of a life’ and if the Board ‘finds that it is not reasonable to expect that parole would be granted at a hearing during the following [two] years and states the bases for the findings.’” Id. (quoting Cal.Penal Code Ann. § 3041.5(b)(2)(West" } ]

[ { "docid": "5716122", "title": "", "text": "at 766. Defendants contend that this tolling doctrine grants to the individual members of a purported class action the right to either intervene in the pending class action or to file their own lawsuits. Crown, Cork & Seal Company, Inc. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). That doctrine does not, defendants say, permit an unnamed member of,, a class to commence his or her own class action upon the denial of class certification in the original class proceeding. Such an interpretation would permit perpetual tolling, prejudicing defendants and allowing use of extremely stale evidence. Plaintiff contends that the tolling doctrine of American Pipe does apply to toll the claims of the putative class members in Bums, as well as the claims of the named plaintiff. Plaintiff claims that defendant’s interpretation would frustrate the purposes of Fed.R.Civ.P. 23 and is not required by American Pipe or Crown Cork. While there appears to be little law on the question, the court agrees with defendant that the tolling doctrine does not apply to the class allegations of the putative class members in Burns. American Pipe was a federal antitrust suit filed with only 11 days left to run on the applicable statute of limitations. After the district court had ruled that the suit could not proceed as a class action and after the statute would have run, a number of putative class members moved to intervene. The Supreme Court held that the motions to intervene were not time-barred. The court recognized that unless the statute of limitations was tolled by the filing of the class action, class members would not be able to rely on the existence of the class suit to protect their rights. Instead, they would be required to file motions to intervene or to join to protect themselves against possible denial of class certification and running of the statute. 414 U.S. at 553, 94 S.Ct. at 766. The purposes of the class action procedure — promotion of efficiency and economy of litigation — would be frustrated. Id. Thus the court ruled that commencement of" } ]

[ { "docid": "5448981", "title": "", "text": "or are they subject to equitable tolling. This Court is of the opinion that the thirty day limitation contained in § 1613.-214(a)(l)(i), rather than the ninety day period in § 1613.602(a), is controlling herein. Two independent reasons support this conclusion. First, the regulations implicitly recognize that different members of the same putative class may not repeatedly initiate class actions based on the same conduct. See 29 C.F.R. § 1613.604(b). This is what Plaintiffs attempt herein. The Brown class action did not result in class-wide relief; therefore, the Plaintiffs seek to bring essentially the same class action. More fundamentally, the only basis for reaching any of the issues presented by Defendant’s motion is to assume, as Defendant does implicitly, that whatever time limitation was applicable, it was tolled during the pendency of the Luevano and Brown class actions. This assumption is grounded in the Supreme Court decisions in American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). In American Pipe and Crown Cork & Seal, the Court held that the filing of a class action tolls the running of statutes of limitations. In Crown, Cork & Seal, the Court said: Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action. 462 U.S. at 354, 103 S.Ct. at 2397. However, courts which have considered the question have consistently held that the statute of limitations is not tolled for purposes of initiating a new class action, see Smith v. Flagship International, 609 F.Supp. 58 (N.D.Tex.1985); Burns v. Ersek, 591 F.Supp. 837 (D.Minn.1984), in order to avoid perpetual tolling of the statute of limitations by the filing of repeated class actions. This Court agrees with those holdings. Based on the foregoing, the Court concludes that the applicable time limitation for Plaintiffs’ claims is the" }, { "docid": "5448982", "title": "", "text": "103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). In American Pipe and Crown Cork & Seal, the Court held that the filing of a class action tolls the running of statutes of limitations. In Crown, Cork & Seal, the Court said: Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action. 462 U.S. at 354, 103 S.Ct. at 2397. However, courts which have considered the question have consistently held that the statute of limitations is not tolled for purposes of initiating a new class action, see Smith v. Flagship International, 609 F.Supp. 58 (N.D.Tex.1985); Burns v. Ersek, 591 F.Supp. 837 (D.Minn.1984), in order to avoid perpetual tolling of the statute of limitations by the filing of repeated class actions. This Court agrees with those holdings. Based on the foregoing, the Court concludes that the applicable time limitation for Plaintiffs’ claims is the thirty day period contained in § 1613.214(a)(l)(i), rather than the ninety day period of § 1613.-602(a), even though Plaintiffs purport to bring this action as a class action. Having so concluded, the Court must next consider what event triggers the running of the thirty day period. As set forth above, Defendant argues that the thirty day period begins to run when this Court overruled the motion to certify the class in Brown. Plaintiffs, on the other hand, argue that the thirty day period began to run when the decision in Brown became final, in other words when the appeal time had run. The Court agrees with Defendant. American Pipe and Crown, Cork & Seal teach that the statute of limitations is tolled only during the pendency of a motion to certify. See 414 U.S. at 561, 94 S.Ct. at 770; 462 U.S. at 354, 103 S.Ct. at 2397. Thus, the thirty day limitation in § 1613.214(a)(l)(i) began to run on March 15, 1983 when this Court overruled the motion to certify in Brown. Moreover, even" }, { "docid": "22181965", "title": "", "text": "was pending on that date. We agree with the district court and defendant. The thirty day filing requirement triggers the entire administrative mechanism for handling claims of discrimination, and is normally measured from the occurrence of the “matter” causing an employee to believe she has suffered discrimination. It is intended to bring complaints to the attention of the employer expeditiously. So long as a class action is pending the employer-agency is on notice of the claims of all putative class members. Once the class action ends, however, the employee is required to bring her individual claim to the attention of the employer by filing an administrative complaint with her EEO counselor. Absent a showing of grounds for equitable tolling, which we discuss later, there is no basis in the regulations or the case law for relieving an employee of the obligation to take this step within thirty days as required by 29 C.F.R. § 1613.214(a)(l)(i). Even if the Brown plaintiffs second motion for class certification somehow revived or reactivated tolling, it came too late. More than thirty days had gone by in which neither a class action nor a motion for class certification was pending. We find nothing in American Pipe or Crown, Cork & Seal to indicate that mere notice by the Brown plaintiff of her intent to file a second motion for class certification began a new tolling period. It is the filing of a class action and the pendency of a motion to certify that suspend the running of a limitations period for putative class members, and the period for filing begins to run anew when class certification is denied. Nothing less will suffice to maintain the period of suspension. IV. A. The plaintiffs’ final argument is that the thirty day filing period was subject to equitable tolling until the Brown case was finally dismissed. The district court correctly held that the filing requirements of 29 C.F.R. § 1613.214(a) are not jurisdictional and are subject to equitable tolling. Boddy v. Dean, 821 F.2d 346 (6th Cir.1987). The district court found, however, that the plaintiffs’ affidavits provided no" }, { "docid": "7326056", "title": "", "text": "received the letter on November 4, 1982. This purported evidence of her failed memory fails as a showing of “specific facts,” FED.R.CIV.P. 56(e), to rebut Flagship’s showing of the absence of a genuine issue of fact. See O’Dowd v. South Central Bell, 729 F.2d 347, 350 & n. 8 (5th Cir.1984) (plaintiffs failed to produce “specific facts” under Rule 56(e) where one plaintiff testified as to inability to recall whether he had talked to any of defendant’s employees about the reason that his telephone service was disconnected and plaintiffs were otherwise unable to identify the factual basis of allegation of defendant’s discrimination against them because they resided in a predominately black and elderly neighborhood); cf. Posey v. Skyline Corporation, 702 F.2d 102, 105-06 (7th Cir.), cert, denied, — U.S.—, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983); Fireman’s Insurance Company of Newark, New Jersey v. DuFresne, 676 F.2d 965, 967-69 (3d Cir. 1982) (opponent’s denial of knowledge of facts relied on by movant insufficient to defeat summary judgment). II. Applicability Vel Non of the Parker Tolling Rule to Smith’s Class Claims Smith argues in the alternative that the filing of the Title VII complaint in the Jones case tolled the 90-day limitation period for the filing of both her individual claims and her class claims. She bases her argument on the case of Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), wherein the Supreme Court held: We conclude, as did the Court in American Pipe, that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action. Id. at 2397 (citation omitted). Smith argues for a broad reading of the Parker holding, i.e.," }, { "docid": "18973978", "title": "", "text": "that under Rule 23, class actions are “designed to avoid, rather than encourage” repetitious filing. Id. at 550, 94 S.Ct. 756. American Pipe found equitable tolling appropriate precisely because it did not want to punish putative class members who had waited to file an action, as encouraged by Rule 23, and had relied, knowingly or not, on the class litigation only to find that the class was not certified and their time to file independent actions had expired. See 414 U.S. at 551, 94 S.Ct. 756. Although American Pipe itself tolled the statute of limitations only for those who moved to intervene after class certification had been denied, the Supreme Court later extended the doctrine to apply to class members who choose to file separate suits after class certification is denied. See Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). In Croum, Cork, the Court held that “[o]nce the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” Id. at 354, 103 S.Ct. 2392. In Crown, Cork, the Supreme Court emphasized that without the tolling rule “[a] putative class member who fears that class certification may be denied would have every incentive to file a separate action prior to the expiration of his own period of limitations,” which would result in “a needless multiplicity of actions.” Id. at 350-51, 103 S.Ct. 2392; see also Arneil v. Ramsey, 550 F.2d 774, 783 (2d Cir.1977). Although both American Pipe and Crown, Cork address only actions brought by putative class members after class certification was denied, the Alaska Plaintiffs and Amici urge that the American Pipe doctrine applies as well to plaintiffs who filed individual actions before a class is certified. Although the Second Circuit has not yet decided this issue, district courts in this circuit have held that a plaintiff who chooses to file an action independently of the" }, { "docid": "7555518", "title": "", "text": "24 F.3d 463, 471-72 (3rd Cir.1994) (opt-in plaintiff may join ADEA action after limitations period for that individual plaintiff has run if the representative plaintiffs’ actions are timely) with Grayson, 79 F.3d at 1106 (opt-in ADEA plaintiffs must meet the statute of limitations and may not rely on filing of class action complaint) and O’Connell v. Champion Int’l Corp., 812 F.2d 393, 394 (8th Cir.1987) (same). We consider this an issue of some complexity, and we do not reach or resolve it here. Even assuming that the American Pipe and Crown, Cork tolling rules do apply to ADEA actions, we find that the rules do not save plaintiffs’ claims. This is because plaintiffs’ claims depend on the “stacking” of two sequential class actions to keep their claims from being untimely. We do not believe the tolling rules were meant to permit the stacking of class actions. In Crown, Cork, the Court stated that “[o]nee the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied,” at which point “class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” 462 U.S. at 354, 103 S.Ct. at 2398. In this case, the first class action relevant is the Dionne action. The Dionne action was filed as a putative class action on April 20, 1993, and the district court denied class certification on July 6, 1994. Plaintiffs here were within the class sought in Dionne. Applying American Pipe and Crown, Cork would toll the running of the 90-day limitations period for each plaintiff from April 20, 1993, until July 6, 1994. At that point, each plaintiff would have had at most 90 days to move to intervene in that action or to file an individual action. But plaintiffs did not do that. The complaint in this action was filed on October 6,1995, more than 90 days after the denial of class certification in Dionne. Plaintiffs argue that they are saved by the filing of the Halligan putative class action. Halligan was filed in November" }, { "docid": "13972919", "title": "", "text": "did not file the instant motion prior to November 15, 1990, one year after the date defendants claim Feldman had inquiry notice of the alleged fraud, his motion to intervene both personally and as class representative should be denied. Defendants also rely on Korwek v. Hunt, 827 F.2d 874 (2d Cir.1987), to oppose the Feldman Motion. Defendants argue that, under Korwek, the filing of a class action tolls the statute of limitations for individual but not for class claims. See Defendants’ Memorandum of Law in Opposition to Motion to Intervene, at 15-17. Thus, defendants conclude that Mr. Feldman should not be permitted to intervene on behalf of the class. Commencement of a class action complaint or motion to certify a class tolls the running of the statute of limitations against all members of the putative class. The Supreme Court has held that “the rule most consistent with federal class action procedure must be that commencement of a class action suspends the applicable statute of limitations as to all asserted members ■ of the class____” American Pipe and Constr. Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 766, 38 L.Ed.2d 713 (1974). Later intervention by a member of the class is not barred if the original class action was timely filed. As the Supreme Court has held, “Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or intervene as plaintiffs in the pending action.” Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353-54, 103 S.Ct. 2392, 2397-98, 76 L.Ed.2d 628 (1983). This rule is predicated on the proposition that an intervenor that reasonably expected to be represented in the originally filed action possesses an inchoate interest in the class action running from the original date of filing. See 3B Moore’s, at 23-523. Korwek does not alter this result. The Korwek holding is explicitly limited to the “narrow” question of whether the American Pipe tolling rule applies to “permit the filing by" }, { "docid": "14724626", "title": "", "text": "class certification. The Crown, Cork Court wrote: “Once the statute of limi tations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” Crown, Cork, 462 U.S. at 354, 103 S.Ct. at 2397-98. The dissent would have us read the word “denied” in the above passage to mean (among other things) “denied, appealed, denied again, appealed (perhaps) again, and denied again.” Even if we were inclined to divine so much from that one word, “denied,” we could not do so in light of the fact that in the very next sentence the Court suggests that putative class members who have been denied certification might “intervene as plaintiffs in the pending action.” Id. at 354, 103 S.Ct. at 2398. If, as the dissent advocates, we are to read “denied” to mean “finally denied, after all hope for reversal on appeal is gone,” then there will rarely be a “pending action” into which the disappointed putative class members might thereafter intervene. We therefore read Crown, Cork to imply strongly, if not to hold, that tolling of the statute of limitations ends upon the district court’s denial of class certification. American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), provides further guidance from the Court. In American Pipe, the State of Utah filed a class action antitrust complaint with just eleven days before the limitations period expired. Several months later, the district court entered an order denying class certification. See id. at 541-43, 94 S.Ct. at 760-61. Eight days after that order was entered, several state and local agencies that had been putative class members moved to intervene in the action and become plaintiffs. Id. at 543-44, 94 S.Ct. at 761. The Supreme Court stated that the commencement of the class action in this case suspended the running of the limitation period only during the pendency of the motion to strip the suit of its class" }, { "docid": "7326057", "title": "", "text": "Rule to Smith’s Class Claims Smith argues in the alternative that the filing of the Title VII complaint in the Jones case tolled the 90-day limitation period for the filing of both her individual claims and her class claims. She bases her argument on the case of Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), wherein the Supreme Court held: We conclude, as did the Court in American Pipe, that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action. Id. at 2397 (citation omitted). Smith argues for a broad reading of the Parker holding, i.e., that the filing of a class action tolls the limitation period for all putative class members to bring their own class actions as well as individual actions. Yet the facts, statement of the issue, holding, and analysis of Parker indicate to the contrary. The plaintiff in Parker had filed only an individual action after the district court had denied certification of a class of which he was a putative member. The court expressly limited the issue presented in that case to whether asserted members of a denied class would be permitted “to file individual actions,” id. at 2393 (emphasis added), within the time remaining on their limitation periods after the denial of class certification. A close reading of the holding also suggests its restriction to individual actions: “ ‘[T]he commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.”’ Id. at 2397, quoting American Pipe & Construction Co. v. Utah," }, { "docid": "5448983", "title": "", "text": "thirty day period contained in § 1613.214(a)(l)(i), rather than the ninety day period of § 1613.-602(a), even though Plaintiffs purport to bring this action as a class action. Having so concluded, the Court must next consider what event triggers the running of the thirty day period. As set forth above, Defendant argues that the thirty day period begins to run when this Court overruled the motion to certify the class in Brown. Plaintiffs, on the other hand, argue that the thirty day period began to run when the decision in Brown became final, in other words when the appeal time had run. The Court agrees with Defendant. American Pipe and Crown, Cork & Seal teach that the statute of limitations is tolled only during the pendency of a motion to certify. See 414 U.S. at 561, 94 S.Ct. at 770; 462 U.S. at 354, 103 S.Ct. at 2397. Thus, the thirty day limitation in § 1613.214(a)(l)(i) began to run on March 15, 1983 when this Court overruled the motion to certify in Brown. Moreover, even if we assume that the filing of the second motion to certify in Brown, on April 18, 1983, once again tolled the running of § 1613.214(a)(l)(i), it began to run again when Brown was dismissed with prejudice on July 12, 1983. This dismissal would not entitle Plaintiffs to a new thirty days. Rather, under the teachings of American Pipe and its progeny, Plaintiffs had to initiate the administrative proceedings required by § 1613.214(a)(l)(i) within whatever remained of the thirty days, following the July 12, 1983 dismissal. 414 U.S. at 561, 94 S.Ct. at 770. Plaintiffs did not begin this process until July 26, 1983. Thus, when one examines the two periods that were not subject to tolling, March 15, 1983 to April 18, 1983 and July 12, 1983 to July 26, 1983, it becomes apparent that Plaintiffs waited more than thirty days to initiate the administrative process. However, Plaintiffs seek refuge in the doctrine of equitable tolling, and it is to a discussion of that doctrine which the Court must now turn. As stated above," }, { "docid": "8100312", "title": "", "text": "plaintiffs did nothing to pursue their own claims from 1974 until 1983. The court must decide whether the statute of limitations on their claims ran during that time period. In the case of Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the Supreme Court ruled that: “Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied.” Id. at 354, 103 S.Ct. at 2397-98. Similarly, the Supreme Court held in American Pipe & Construc tion Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) that “the commencement of a class action suspends the applicable statute of limitations as to all asserted class members of the class who would have been parties had the suit been permitted to continue as a class action.” Id. at 554, 94 S.Ct. at 766. The intent of the American Pipe suspension rule is to preserve the individual right to sue of members of a proposed class until the issue of class certification has been decided. Crown, Cork & Seal, supra, at 354, 103 S.Ct. at 2398. (Powell, Jr., concurring). Defendants argue that the issue of class certification was decided when this court finally redefined the class in Payne by its order of December 8, 1976. Defendants would, therefore, have the statute of limitations begin running on plaintiffs’ claims as early as December 8,1976 or December 20, 1974, when the court initially redefined the class in Payne to exclude black males. Plaintiffs point to the proposed need for a rule that would not result in a multitude of duplicative filings. They suggest that the putative subclass representatives should not be required to file individual EEOC charges and a new lawsuit while the original plaintiffs in the class action case are still seeking the district court’s reconsideration of the limitations on the class and are challenging those limitations on appeal. The American Pipe decision supports the plaintiffs’ contention and indicates that the functional purpose of a statute of limitations is to prevent" }, { "docid": "5448988", "title": "", "text": "the motion to certify in Brown. In Crown, Cork and Seal, the Supreme Court extended its holding of American Pipe (that the statutes of limitations are tolled during the pendency of a motion to certify) to Title VII cases, in part, because the time limita tions contained in Title VII are not jurisdictional. See 462 U.S. at 349 n. 3, 103 S.Ct. at 2395 n. 3. If § 1613.214(a)(l)(i) is jurisdictional, then not even the pendency of a motion to certify could toll it, and the Plaintiffs’ claims would have been time barred long ago. Accordingly, this Court concludes that the period in § 1613.214(a)(l)(i) is subject to equitable tolling. However, this does not mean that the Plaintiffs are necessarily protected by the doctrine. Although the Plaintiffs argue in favor of equitable tolling and make certain oblique references to its application herein, they do not set forth or support with affidavits their theory of equitable tolling with any specificity. Therefore, the Court hereby directs Plaintiffs to file a supplemental memorandum in opposition to the motion to dismiss within thirty days of the receipt of this Decision and Entry. This memorandum must set forth precisely why the limitation contained in § 1613.214(a)(l)(i) was tolled herein, and the Plaintiffs’ contentions must be supported by affidavits or by other evidence. The Defendant shall have twenty days thereafter within which to file a reply memorandum with accompanying documentation. (2) Class Action Claims. Defendant moves to dismiss Plaintiffs’ class action claims, arguing that they are barred by the res judicata effect of this Court’s decision in Brown, overruling the motion to certify, which was not appealed. The Court agrees with Defendant that Plaintiffs may not assert their class action claims herein; however, the Court reaches its conclusion by a different route. Therefore, the Court finds it unnecessary to travel the path of res judicata. In the discussion of Defendant’s motion to dismiss as it relates to the Plaintiffs’ individual claims, this Court concluded that the claims were governed by the administrative regulations relating to individual actions rather than class actions. In part, the Court reached" }, { "docid": "22181959", "title": "", "text": "began to run with the March 15 denial of class certification in Brown. Since the plaintiffs filed their complaints with their EEO counselor in July, they were out of time. The court also held, however, that the thirty day requirement is not jurisdictional and is subject to equitable tolling. Id. at 693-94. In a later unreported decision filed on February 27, 1987, the district court held that the plaintiffs had not established facts to support a finding that equitable tolling should be applied to extend the time in which they could have filed their individual administrative complaints. The district court then dismissed the action with prejudice, and this appeal followed. II. A. The district court was clearly correct in holding that pendency of the Luevano and Brown class actions tolled the limitations periods for the plaintiffs’ individual claims. In American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the Supreme Court stated the rule that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Id. at 554, 94 S.Ct. at 766 (footnote omitted). Later the Court applied this rule in a Title VII case and clarified the duration and effect of the tolling. Crown, Cork & Seal Co. v. Parker, 462 U.S. 346, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). There the Court stated that “[o]nce the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” Id. at 354, 103 S.Ct. at 2397-98 (emphasis added). B. We also agree with the district court’s conclusions concerning the plaintiffs’ attempt to gain classwide relief. The courts of appeals that have dealt with the issue appear to be in unanimous agreement that the pendency of a previously filed class action does not toll the limitations" }, { "docid": "7370410", "title": "", "text": "& Seal Co. v. Parker, 462 U.S. 345, 353-54, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). The Supreme Court’s rationale for this result is elegant and appealing: While the class action is pending, putative class members are entitled to rely on it to preserve their rights. If the rule were otherwise, as the limitations period drew to a close, class members would feel compelled to protect themselves by filing individual lawsuits, even though the class action was still pending. This would undermine the policy of class litigation, which favors filing a single lawsuit rather than many. To avoid this perverse result, Crown, Cork adopted a simple solution: If the class action failed before reaching the merits, putative class members would be allowed to bring individual lawsuits for however long was left on the statute of limitations clock at the time the class action was filed. While the Supreme Court said nothing about filing successive class actions, it strongly implied that filing a subsequent class action is not an option for class members once a class is dismissed: “Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” Id. at 354, 103 S.Ct. 2392. Given that Crown, Cork was a case dealing with class actions, it is significant that the Court did not mention the possibility of filing a second class action should the first one fail. Every circuit to have considered the issue'(including our own) has held that the rationale of Crown, Cork does not permit the filing of a second or subsequent class action once the original statute of limita tions has run. This reluctance is based on a concern about the replicative effects of the Crown, Cork rationale: A subsequent class action does not merely preserve the rights of class members, it also engages for a second (or third or further) time the rationale of Crown, Cork. Thus, if the second class action is" }, { "docid": "22181963", "title": "", "text": "actions by putative class members. We turn next to the question of when tolling ended and the thirty day period began to run for the plaintiffs’ .individual claims. III. As stated earlier, the district court denied class certification in Brown on March 15, 1983. At a pretrial conference on March 23, 1983, the plaintiff in Brown indicated that she intended to file a second motion to certify a class limited to employees at WPAFB. On March 25 the court issued a pretrial order directing Brown to file such a motion within thirty days. Complying with this order, Brown filed her second motion for class certification on April 18. This motion was still pending when the Brown case was settled and dismissed in July. The district court held that since there was no motion to certify a class in Brown pending between March 15 and April 18, the plaintiffs’ time to file individual EEO complaints began to run on March 15 and expired on April 15. The court stated that tolling was not triggered by the Brown plaintiff’s notification of her intention to file a second motion for class certification, or by the district court order granting thirty days for filing the motion. The district court emphasized that tolling occurs under the American Pipe-Crown, Cork & Seal rule only during the pendency of a class action, and Brown ceased to be a class action on March 15, 1983. 614 F.Supp. at 692-93. The plaintiffs argue on appeal that the thirty day filing period was continuously tolled from the commencement of the Lue-vano class action until the Brown class action was finally settled on July 12, 1983, with the second motion for certification still pending. In the alternative, they contend that the March 23, 1983, notice of intent to file a second motion to certify in Brown revived tolling. Thus, they contend their individual claims, filed between July 26 and 28, 1983, were timely. The defendant responds that tolling ended on March 15 and the plaintiffs’ time ran out on April 15 because no class action or motion to certify a class" }, { "docid": "2360901", "title": "", "text": "that case acted to toll the running of statutes of limitations as to the class claims in this case. Defendants argue that “[njothing in the Supreme Court’s opinions in American Pipe or Crown Cork can be construed to expand the tolling principles announced therein to apply to the commencement of a subsequent class action following denial of class certification in the original proceeding.” Defendants’ Memorandum at 4. They quote the concluding language of Crown Cork— “Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” 462 U.S. at 354, 103 S.Ct. at 2397. —and apparently reason by negative implication that the Supreme Court did not intend, because it did not mention, that the tolling rule should apply to subsequent class actions. Defendants also argue that application of the tolling rule to subsequent class actions would permit the filing in perpetuity of additional class actions, since each successive class action would continue the toll until a determination of class certification was made. Although there appears to be no decision by the Supreme Court or any circuit court which addresses this question, defendants cite three district court decisions which support their position. See Smith v. Flagship International, 609 F.Supp. 58, 63-64 (N.D.Tex.1985); Bums v. Ersek, 591 F.Supp. 837, 839-42 (D.Minn.1984); accord Andrews v. Orr, 614 F.Supp. 689, 692 (S.D. Ohio 1985). The Bums court, for example, concluded that “the language and reasoning of Crown Cork imply that the Court would not extend the tolling doctrine to class allegations by putative class members in subsequent suits filed after denial of class certification.” 591 F.Supp. at 840. The Smith court reached the same conclusion and went on to state: [E]ven if there were conflicting suggestions in [Crown Cork ] that the tolling rule should apply to future class actions, this court would be disinclined to give them much weight. The rule advanced by Smith would allow the attorney for a" }, { "docid": "6796578", "title": "", "text": "the suit been permitted to continue as a class action.’ Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. Crown, Cork & Seal Co., 462 U.S. at 353-54, 103 S.Ct. at 2397-98 (quoting American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 766-67, 38 L.Ed.2d 713 (1974)) (citations omitted). The tolling of the ninety-day statute of limitations protects the claimant in the event class certification is ultimately denied or vacated. Courts provide this protection because it is reasonable for such claimants to rely on the named plaintiffs in the pending class action to protect their rights. Crown, Cork & Seal Co., 462 U.S. at 352-53, 103 S.Ct. at 2396-97 (“Rule 23 both permits and encourages class members to rely on the named plaintiffs to press their claims.”); Griffin v. Singletary, 17 F.3d 356, 360 (11th Cir.1994) (“Insofar as the individual claims are concerned, punitive class members should be entitled to rely in a class action as long as it is pending.”). Neither this court nor other circuits, however, have addressed whether the ninety-day statute of limitations period remains tolled when the district court dismisses claimants from a pending class action in an interlocutory order. This question is of particular importance because at the time of dismissal claimants cannot appeal the district court’s dismissal order as of right because it is not a final judgment. See Fed.R.Civ.P. 54(b). In this case, the district court held that section 626(e) bars the Armstrong plaintiffs’ individual ADEA lawsuit because they failed to commence their action within ninety days of receiving notice of their dismissal from the Carmichael class action. The district court found that in order for the Armstrong plaintiffs to timely file their individual lawsuits under section 626(e), they were required to file a lawsuit on or before July 7, 1994; the Armstrong plaintiffs, however, filed their lawsuit on October 11,1994. The Armstrong plaintiffs argue that the district court erred in holding that section 626(e) barred their ADEA claims. They contend that the ninety-day" }, { "docid": "5448980", "title": "", "text": "Additionally, Defendant contends that the thirty day requirement contained in § 1613.214(a)(l)(i) is jurisdictional and not subject to equitable tolling. Plaintiffs argue that they seek classwide relief, and, as a consequence, the regulations regarding claims for classwide relief are applicable. See 29 C.F.R. § 1613.601 et seq. Particularly, Plaintiffs would have the Court apply the ninety day time limit contained in § 1613.602(a). Alternatively, Plaintiffs argue that even if the thirty day time limit contained in § 1613.214(a)(l)(i) applies, it did not begin to run until this Court’s decision overruling the motion to certify became final on September 15, 1983 when the time to appeal that decision expired. See Rule 4(a)(1), Fed.R.App.P. Additionally, Plaintiffs argue that the thirty day requirement of § 1613.214(a)(l)(i) is not jurisdictional; rather, they contend it is subject to equitable tolling. Thus, this Court is faced with three distinct questions: (1) which time limit set forth in the regulations is applicable; (2) when did the time begin to run; and (3) are the limitations periods set forth in the regulations jurisdictional or are they subject to equitable tolling. This Court is of the opinion that the thirty day limitation contained in § 1613.-214(a)(l)(i), rather than the ninety day period in § 1613.602(a), is controlling herein. Two independent reasons support this conclusion. First, the regulations implicitly recognize that different members of the same putative class may not repeatedly initiate class actions based on the same conduct. See 29 C.F.R. § 1613.604(b). This is what Plaintiffs attempt herein. The Brown class action did not result in class-wide relief; therefore, the Plaintiffs seek to bring essentially the same class action. More fundamentally, the only basis for reaching any of the issues presented by Defendant’s motion is to assume, as Defendant does implicitly, that whatever time limitation was applicable, it was tolled during the pendency of the Luevano and Brown class actions. This assumption is grounded in the Supreme Court decisions in American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345," }, { "docid": "2238395", "title": "", "text": "first indirect purchaser class action complaint was filed in this case; (2) that the statute of limitations was tolled by fraudulent concealment; and (3) that indirect purchaser class plaintiffs have alleged current and continuing violations of the antitrust laws by defendants extending the limitations period. a. Class Action Tolling Plaintiffs maintain that the statute of limitations in this case was tolled around August 1, 2000 when the first indirect purchaser class action complaint was filed. It is well settled that “[t]he filing of a class action tolls the statute of limitations ‘as to all asserted members of the class.’ ” Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 353-54, 103 S.Ct. 2392, 2397, 76 L.Ed.2d 628 (1983) (citing Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 766, 38 L.Ed.2d 713 (1974)). In Crown, Cork, the Supreme Court held that “[o]nce the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or intervene as plaintiffs in the pending action.” Id. at 354, 103 S.Ct. at 2397-98. The Supreme Court has also recognized that tolling the statute of limitations in this respect does not create the potential for unfair surprise or otherwise prejudice a defendant when the later filed actions raise claims concerning “the same evidence, memories, and witnesses as the subject matter of the original class suit.” Am. Pipe, 414 U.S. at 562, 94 S.Ct. at 770 (Blackmun, J., concurring). Defendants, however, argue that the filing of the first indirect purchaser class action in this case did not toll the statute of limitations with respect to Organizational Plaintiffs because those plaintiffs are not members of the indirect purchaser class, as that class is defined in the first complaint. In the class action context, the statute of limitations can be tolled only for those who are “asserted members of the class” when another action was timely filed. See Crown, Cork, 462 U.S. at 353-54, 103 S.Ct. at 2397 (citing" }, { "docid": "2360900", "title": "", "text": "the short positions he opened and closed out within July 1979 do not benefit from the Supreme Court’s tolling rule. Regardless whether the tolling rule applies to subsequently filed class actions, the July 1979 trading claims are subject to limitations periods that ran continuously since the causes of action accrued. Similarly, none of the claims asserted against defendants Continental Grain Company and Walter M. Goldschmidt is affected by any formulation of the American Pipe tolling rule because those defendants were not brought into this action until 1985 — well after all motions relating to the certification of the Gordon class had been decided. “Claims as to which the defendant was not fairly placed on notice by the class suit are not protected under American Pipe____” Crown Cork, 462 U.S. at 355, 103 S.Ct. at 2398 (Powell, J., concurring, joined by Rehnquist and O’Connor, JJ.). Contentions Of The Parties As To Class Action Tolling The question remains, however, whether the filing of the Gordon complaint and related motions as to the status of the class in that case acted to toll the running of statutes of limitations as to the class claims in this case. Defendants argue that “[njothing in the Supreme Court’s opinions in American Pipe or Crown Cork can be construed to expand the tolling principles announced therein to apply to the commencement of a subsequent class action following denial of class certification in the original proceeding.” Defendants’ Memorandum at 4. They quote the concluding language of Crown Cork— “Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” 462 U.S. at 354, 103 S.Ct. at 2397. —and apparently reason by negative implication that the Supreme Court did not intend, because it did not mention, that the tolling rule should apply to subsequent class actions. Defendants also argue that application of the tolling rule to subsequent class actions would permit the filing in perpetuity of" } ]

[ { "docid": "12947609", "title": "", "text": "are competent in determining when state-law claims are preempted by federal law, removal to a federal forum based on the doctrine of complete preemption has been the exception, not the rule. Recognizing that the complete preemption doctrine works to trump the well-pleaded complaint rule as well as the maxim that a plaintiff is the master of the complaint and may avoid a federal forum by relying exclusively on state law, the Supreme Court expanded the doctrine only “hesitatingly” when there was a clear showing of congressional intent to permit removal. BLAB T.V., 182 F.3d at 856. Since we find no clear congressional intent to permit removal under §§85 and 86 of the NBA, we therefore hold that while these sections may provide a defense to state-law usury claims, they do not accomplish complete preemption so as to permit removal. We therefore REVERSE the district court’s order denying the plaintiffs’ motion to remand and REMAND to the district court for further proceedings consistent with this opinion. . In a tax refund anticipation loan, a customer receives the amount of her anticipated tax refund, less fees charged by the lender and the tax preparation service, and in return authorizes the government to deposit the tax refund directly into an account at the bank to repay the loan. . The plaintiffs alleged that the defendants charged excessive interest in violation of Alabama Code § 8-8-1 and the common-law usury doctrine. In addition to the usury claims, the complaint included claims for intentional misrepresentation, suppression of material facts, and breach of fiduciary duly. . Section 85 provides, \"Any [national bank] may take, receive, reserve, and charge on any loan or discount made ... interest at the rate allowed by the laws of the State ... where the bank is located....” 12 U.S.C. § 85. .Section 86 provides, The taking, receiving, reserving, or charging a rate of interest greater than is allowed by section 85 of this title, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has" } ]

[ { "docid": "22760375", "title": "", "text": "and source of the possessory rights of Indian tribes.” Oneida Indian Nation of N Y. v. County of Oneida, 414 U. S. 661, 667 (1974). Because that case turned on the special historical relationship between Indian tribes and the Federal Government, it does not assist the present analysis. Because the proper inquiry focuses on whether Congress intended the federal cause of action to be exclusive rather than on whether Congress intended that the cause of action be removable, the fact that these sections of the National Bank Act were passed in 1864,11 years prior to the passage of the statute authorizing removal, is irrelevant, contrary to respondents’ assertions. Justice Scalia, with whom Justice Thomas joins, dissenting. Today’s opinion takes the view that because the National Bank Act, 12 U. S. C. §§85, 86, provides the exclusive cause of action for claims of usury against a national bank, all such claims — even if explicitly pleaded under state law — are to be construed as “arising] under” federal law for purposes of our jurisdictional statutes. Ante this page. This view finds scant support in our precedents and no support whatever in the National Bank Act or any other Act of Congress. I respectfully dissent. Unless Congress expressly provides otherwise, the federal courts may exercise removal jurisdiction over state-court actions “of which the district courts of the United States have original jurisdiction.” 28 U. S. C. § 1441(a). In this case, petitioners invoked as the predicate for removal the district courts’ original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” §1331. This so-called “arising under” or “federal question” jurisdiction has long been governed by the well-pleaded-complaint rule, which provides that “federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U. S. 386, 392 (1987). A federal question “is presented” when the complaint invokes federal law as the basis for relief. It does not suffice that the facts alleged in support of an asserted state-law claim would also support a" }, { "docid": "22389752", "title": "", "text": "granted certiorari, 521 U. S. 1152 (1997), to resolve the matter. H í> A state-court action may be removed to federal court if it qualifies as a \"civil action ... of which the district courts of the United States have original jurisdiction,” unless Congress expressly provides otherwise. 28 U. S. C. § 1441(a). In this case, respondents invoked, in support of removal, the district courts’ original federal-question jurisdiction over \"[a]ny civil action . . . founded on a claim or right arising under the Constitution, treaties or laws of the United States.” 28 U. S. C. § 1441(b); see also 28 U. S. C. § 1331. We have long held that “[t]he presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U. S. 386, 392 (1987); see also Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149, 152 (1908). A defense is not part of a plaintiff’s properly pleaded statement of his or her claim. See Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58, 63 (1987); Gully v. First Nat. Bank in Meridian, 299 U. S. 109, 112 (1936) (“To bring a ease within the [federal-question removal] statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action.”). Thus, “a ease may not be removed to federal court on the basis of a federal defense, . . . even if the defense is anticipated in the plaintiff’s complaint, and even if both parties admit that the defense is the only question truly at issue in the case.” Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 14 (1983). Allied as an “independent corollary” to the well-pleaded complaint rule is the further principle that “a plaintiff may not defeat removal by omitting to plead necessary federal questions.” Id., at 22," }, { "docid": "22187926", "title": "", "text": "of Minnesota Statutes, § 48.185.” Id., at 140a-141a. On appeal, the Minnesota Supreme Court reversed. Noting that Marquette’s dismissal of Omaha Bank was a procedural device that removed the case from the jurisdiction of the federal courts of the Eighth Circuit, and noting that a recent decision of the Court of Appeals for the Eighth Circuit had made it plain that in its judgment the usury laws of Nebraska rather than Minnesota should govern the operation of Omaha Bank’s BankAmericard program in Minnesota, see Fisher v. First Nat. Bank of Omaha, 548 F. 2d 255 (1977), the Minnesota Supreme Court concluded that it would be “inappropriate for this court to permit the use of procedural devices to obtain a result inconsistent with the existing doctrine in the Eighth Circuit.” 262 N. W. 2d, at 365. Plaintiffs filed timely petitions for writs of certiorari, which we granted, 436 U. S. 916 (1978), in order to decide the appropriate application of 12 U. S. C. § 85. II In the present posture of this case Omaha Bank is no longer a party defendant. The federal question presented for decision is nevertheless the application of 12 U. S. C. § 85 to the operation of Omaha Bank's BankAmericard program. There is no allegation in petitioners’ complaints that either Omaha Service Corp. or the Minnesota merchants and banks participating in the BankAmericard program are themselves extending credit in violation of Minn. Stat. §48.185 (1978), and we therefore have no occasion to determine the application of the National Bank Act in such a case. Omaha Bank is a national bank; it is an “instrumentalit[yj of the Federal government, created for a public purpose, and as such necessarily subject tO' the paramount authority of the United States.” Davis v. Elmira Savings Bank, 161 U. S. 275, 283 (1896). The interest rate that Omaha Bank may charge in its BankAmericard program is thus governed by federal law. See Farmers’ & Mechanics’ Nat. Bank v. Dearing, 91 U. S. 29, 34 (1875). The provision of § 85 called into question states: “Any association may take, receive, reserve, and" }, { "docid": "23083219", "title": "", "text": "Cir.2000). As to the motion to dismiss, under Federal Rule of Civil Procedure 12(b)(6), we must accept the plaintiffs’ factual allegations as true and grant all reasonable inferences in the plaintiffs’ favor. MM&S Fin., Inc. v. Nat’l Ass’n of Sec. Dealers, Inc., 364 F.3d 908, 909 (8th Cir.2004). We may affirm the district court’s dismissal on any basis supported by the record. In re K-tel Int’l, Inc. Sec. Litig., 300 F.3d 881, 889 (8th Cir.2001) (citation omitted). A. Preemption A defendant may remove a state law claim to federal court when the federal court would have had original jurisdiction if the suit originally had been filed there. See 28 U.S.C. § 1441(b). Removal based on federal question jurisdiction is usually governed by the “well-pleaded complaint” rule. Krispin v. May Dep’t Stores Co., 218 F.3d 919, 922 (8th Cir.2000). This rule provides that federal jurisdiction may be invoked “only where a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Id The rule also “makes the plaintiff the master of the claim,” allowing the plaintiff to “avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). An independent corollary to this general rule is the “complete preemption” doctrine, “under which the preemptive force of certain federal statutes is deemed so ‘extraordinary’ as to convert complaints purportedly based on the preempted state law into complaints stating federal claims from their inception.” Krispin, 218 F.3d at 922 (citing Caterpillar Inc., 482 U.S. at 393, 107 S.Ct. 2425). Only claims falling within the preemptive scope of a federal statute are considered to invoke federal question jurisdiction, and the presence of even a single federal claim gives the defendant the right to remove an entire case to federal court. Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 543 (8th Cir.1996). The National Bank Act (NBA), 12 U.S.C. §§ 21-216d, authorizes a national bank “to charge interest at the rate allowed by the laws of the state in which the bank is located.” Krispin, 218" }, { "docid": "22760367", "title": "", "text": "complete preemption — certain causes of action under the LMRA and ERISA — the federal statutes at issue provided the exclusive cause of action for the claim asserted and also set forth procedures and remedies governing that cause of action. See 29 U. S. C. § 1132 (setting forth procedures and remedies for civil claims under ERISA); § 185 (describing procedures and remedies for suits under the LMRA). III Count IV of respondents’ complaint sought relief for “usury violations” and claimed that petitioners “charged . .. excessive interest in violation of the common law usury doctrine” and violated “Alabama Code §8-8-1, et seq. by charging excessive interest.” App. 28. Respondents’ complaint thus expressly charged petitioners with usury. Metropolitan Life, Avco, and Franchise Tax Board provide the framework for answering the dispositive question in this case: Does the National Bank Act provide the exclusive cause of action for usury claims against national banks? If so, then the cause of action necessarily arises under federal law and the case is removable. If not, then the complaint does not arise under federal law and is not removable. Sections 85 and 86 serve distinct purposes. The former sets forth the substantive limits on the rates of interest that national banks may charge. The latter sets forth the elements of a usury claim against a national bank, provides for a 2-year statute of limitations for such a claim, and prescribes the remedies available to borrowers who are charged higher rates and the procedures governing such a claim. If, as petitioners asserted in their notice of removal, the interest that the bank charged to respondents did not violate §85 limits, the statute unquestionably pre-empts any common-law or Alabama statutory rule that would treat those rates as usurious. The section would therefore provide the petitioners with a complete federal defense. Such a federal defense, however, would not justify removal. Caterpillar Inc. v. Williams, 482 U. S. 386, 393 (1987). Only if Congress intended § 86 to provide the exclusive cause of action for usury claims against national banks would the statute be comparable to the provisions that" }, { "docid": "22389751", "title": "", "text": "to state a claim against them. The Fifth Circuit affirmed. 108 F. 3d 576 (1997). It agreed with the District Court that under Carpenter a defendant could remove “'where a plaintiff files a state cause of action completely precluded by a prior federal judgment on a question of federal law.’ ” 108 F. 3d, at 586 (quoting Carpenter, 44 F. 3d, at 370). Carpenter's holding, the Court of Appeals thought, was dictated by the second footnote to our decision in Moitie, 452 U. S., at 397, n. 2. In dissent, priate under Moitie only where a plaintiff loses in federal court on an \"essentially federal” claim and, recharacterizing the claim as one based on state law, files again in state court. 108 F. 3d, at 594. She concluded that removal here was improper because there was nothing federal about petitioners’ claim. The Courts of Appeals have adopted differing views regarding the propriety of removing a state-court action to federal court on the ground that the claim asserted is precluded by a prior federal judgment. We granted certiorari, 521 U. S. 1152 (1997), to resolve the matter. H í> A state-court action may be removed to federal court if it qualifies as a \"civil action ... of which the district courts of the United States have original jurisdiction,” unless Congress expressly provides otherwise. 28 U. S. C. § 1441(a). In this case, respondents invoked, in support of removal, the district courts’ original federal-question jurisdiction over \"[a]ny civil action . . . founded on a claim or right arising under the Constitution, treaties or laws of the United States.” 28 U. S. C. § 1441(b); see also 28 U. S. C. § 1331. We have long held that “[t]he presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U. S. 386, 392 (1987); see also Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149, 152 (1908). A defense is" }, { "docid": "22760371", "title": "", "text": "as the “power to destroy,” McCulloch v. Maryland, 4 Wheat. 316, 431 (1819), supports the established interpretation of §§85 and 86 that gives those provisions the requisite pre-emptive force to provide removal jurisdiction. In actions against national banks for usury, these provisions supersede both the substantive and the remedial provisions of state usury laws and create a federal remedy for overcharges that is exclusive, even when a state complainant, as here, relies entirely on state law. Because §§85 and 86 provide the exclusive cause of action for such claims, there is, in short, no such thing as a state-law claim of usury against a national bank. Even though the complaint makes no mention of federal law, it unquestionably and unambiguously claims that petitioners violated usury laws. This cause of action against national banks only arises under federal law and could, therefore, be removed under § 1441. The judgment of the Court of Appeals is reversed. It is so ordered. Title 12 U. S. C. §85 provides: “Rate of interest on loans, discounts and purchases “Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, or at a rate of 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal reserve bank in the Federal reserve district where the bank is located, whichever may be the greater, and no more, except that where by the laws of any State a different rate is limited for banks organized under state laws, the rate so limited shall be allowed for associations organized or existing in any such State under title 62 of the Revised Statutes. When no rate is fixed by the laws of the State, or Territory, or District, the bank may take, receive, reserve, or charge a rate not exceeding 7 per centum, or 1 per centum in excess of the discount rate on ninety day commercial paper" }, { "docid": "23025882", "title": "", "text": "S. 973 (1987). On reconsideration, the panel of the Tenth Circuit adhered to its previous disposition that removal was proper. Oklahoma ex rel. Oklahoma Tax Comm’n v. Graham, 846 F. 2d 1258 (1988). The court read Caterpillar as holding that, to support federal-question removability, a complaint must on its face present a federal claim. But that rule did not apply to Oklahoma’s complaint, thought the panel, because, although “nothing within the literal language of the pleading even suggests implication of a federal question,” “such a question is inherent within the complaint because of the parties subject to the action.” 846 F. 2d, at 1260. Again, Judge Tacha dissented. We granted certiorari, 488 U. S. 816 (1988). We think the decision of the Court of Appeals is plainly inconsistent with Caterpillar and reverse it. “Except as otherwise expressly provided by Act of Congress,” a case is not properly removed to federal court unless it might have been brought there originally. 28 U. S. C. § 1441(a). In the present case, the sole alleged basis of original federal jurisdiction is 28 U. S. C. § 1331, giving district courts “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” The presence or absence of federal-question jurisdiction is governed by the “well-pleaded complaint” rule. “[Wjhether a case is one aris ing under [federal law], in the sense of the jurisdictional statute, . . . must be determined from what necessarily appears in the plaintiff’s statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.” Taylor v. Anderson, 234 U. S. 74, 75-76 (1914); Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149 (1908). In Caterpillar, we ruled that the application of the well-pleaded complaint rule defeated federal-question jurisdiction, and therefore removability, in a case in which employees sued on personal, state-law employment contracts. We refused to characterize these state-law claims as arising under federal law even though an interpretation of the collective-bargaining agreement might ultimately provide" }, { "docid": "23384946", "title": "", "text": "§ 1441(a), which reads that “[ejxcept as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” Breuer sought an order remanding the case to state court, arguing that removal was improper owing to the FLSA’s provision that an action “may be maintained” in any state court, a provision that Breuer put forward as an express exception to the general authorization of removal under § 1441(a). Though the District Court denied Breuer’s motion, it certified the issue for interlocutory appeal under § 1292(b). The Eleventh Circuit affirmed, saying that Congress had expressly barred removal in “direct, unequivocal language” in other statutes, 292 F. 3d 1308, 1310 (2002), but was not comparably prohibitory in § 216(b). The Eleventh Circuit thus joined the First, see Cosme Nieves v. Deshler, 786 F. 2d 445 (1986), but placed itself at odds with the Eighth, see Johnson v. Butler Bros., 162 F. 2d 87 (1947) (denying removability under FLSA). We granted certiorari to resolve the conflict, 537 U S. 1099 (2003), and now affirm. II A There is no question that Breuer could have begun his action in the District Court. The FLSA provides that an action “may be maintained ... in any Federal or State court of competent jurisdiction,” 29 U. S. C. § 216(b), and the district courts would in any event have original jurisdiction over FLSA claims under 28 U. S. C. § 1331, as “arising under the Constitution, laws, or treaties of the United States,” and § 1337(a), as “arising under any Act of Congress regulating commerce.” Removal of FLSA actions is thus prohibited under § 1441(a) only if Congress expressly provided as much. Nothing on the face of 29 U. S. C. § 216(b) looks like an express prohibition of removal, there being no mention of removal, let alone of prohibition. While §" }, { "docid": "23083218", "title": "", "text": "standing to sue Household, as it did not hold any of the plaintiffs’ mortgages. The district court denied the plaintiffs’ motion to remand, concluding the loan origination and discount fees fit within the OCC’s definition of interest, so under federal law, the plaintiffs’ claims were for interest, not fees. The court ruled federal statutes governing national banks create an exclusive cause of action against national banks for usury; thus, no state law cause of action exists. Next, because the plaintiffs attempted to assert a usury claim against a national bank based upon the SMLA, a Missouri statute, the district court dismissed the complaint for failure to state a claim for which relief could be granted. Finally, the court concluded Household’s motion to dismiss was moot, but granted the motion, because the claims against Household derived from those against GNBT. II. DISCUSSION “We review the district court’s denial of a motion to remand and its dismissal of the complaint on grounds of preemption under a de novo standard.” Gore v. TWA, 210 F.3d 944, 948 (8th Cir.2000). As to the motion to dismiss, under Federal Rule of Civil Procedure 12(b)(6), we must accept the plaintiffs’ factual allegations as true and grant all reasonable inferences in the plaintiffs’ favor. MM&S Fin., Inc. v. Nat’l Ass’n of Sec. Dealers, Inc., 364 F.3d 908, 909 (8th Cir.2004). We may affirm the district court’s dismissal on any basis supported by the record. In re K-tel Int’l, Inc. Sec. Litig., 300 F.3d 881, 889 (8th Cir.2001) (citation omitted). A. Preemption A defendant may remove a state law claim to federal court when the federal court would have had original jurisdiction if the suit originally had been filed there. See 28 U.S.C. § 1441(b). Removal based on federal question jurisdiction is usually governed by the “well-pleaded complaint” rule. Krispin v. May Dep’t Stores Co., 218 F.3d 919, 922 (8th Cir.2000). This rule provides that federal jurisdiction may be invoked “only where a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Id The rule also “makes the plaintiff the master of the claim,”" }, { "docid": "22760374", "title": "", "text": "rate of interest greater than is allowed by section 85 of this title, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same: Provided, That such action is commenced within two years from the time the usurious transaction occurred.” Of course, a state claim can also be removed through the use of the supplemental jurisdiction statute, 28 U. S. C. § 1367(a), provided that another claim in the complaint is removable. This Court has also held that federal courts have subject-matter jurisdiction to hear posessory land claims under state law brought by Indian tribes because of the uniquely federal “nature and source of the possessory rights of Indian tribes.” Oneida Indian Nation of N Y. v. County of Oneida, 414 U. S. 661, 667 (1974). Because that case turned on the special historical relationship between Indian tribes and the Federal Government, it does not assist the present analysis. Because the proper inquiry focuses on whether Congress intended the federal cause of action to be exclusive rather than on whether Congress intended that the cause of action be removable, the fact that these sections of the National Bank Act were passed in 1864,11 years prior to the passage of the statute authorizing removal, is irrelevant, contrary to respondents’ assertions. Justice Scalia, with whom Justice Thomas joins, dissenting. Today’s opinion takes the view that because the National Bank Act, 12 U. S. C. §§85, 86, provides the exclusive cause of action for claims of usury against a national bank, all such claims — even if explicitly pleaded under state law — are to be construed as “arising] under” federal law for purposes of our jurisdictional statutes. Ante" }, { "docid": "22760370", "title": "", "text": "permitted rate.” See also Barnet v. National Bank, 98 U. S. 555, 558 (1879) (The “statutes of Ohio and Indiana upon the subject of usury ... cannot affect the case” because the Act “creates a new right” that is “exclusive”); Haseltine v. Central Bank of Springfield, 183 U. S. 132, 134 (1901) (“[T]he definition of usury and the penalties affixed thereto must be determined by the National Banking Act and not by the law of the State”). In addition to this Court’s longstanding and consistent construction of the National Bank Act as providing an exclusive federal cause of action for usury against national banks, this Court has also recognized the special nature of federally chartered banks. Uniform rules limiting the liability of national banks and prescribing exclusive remedies for their overcharges are an integral part of a banking system that needed protection from “possible unfriendly State legislation.” Tiffany v. National Bank of Mo., 18 Wall. 409, 412 (1874). The same federal interest that protected national banks from the state taxation that Chief Justice Marshall characterized as the “power to destroy,” McCulloch v. Maryland, 4 Wheat. 316, 431 (1819), supports the established interpretation of §§85 and 86 that gives those provisions the requisite pre-emptive force to provide removal jurisdiction. In actions against national banks for usury, these provisions supersede both the substantive and the remedial provisions of state usury laws and create a federal remedy for overcharges that is exclusive, even when a state complainant, as here, relies entirely on state law. Because §§85 and 86 provide the exclusive cause of action for such claims, there is, in short, no such thing as a state-law claim of usury against a national bank. Even though the complaint makes no mention of federal law, it unquestionably and unambiguously claims that petitioners violated usury laws. This cause of action against national banks only arises under federal law and could, therefore, be removed under § 1441. The judgment of the Court of Appeals is reversed. It is so ordered. Title 12 U. S. C. §85 provides: “Rate of interest on loans, discounts and purchases “Any" }, { "docid": "22760360", "title": "", "text": "Justice Stevens delivered the opinion of the Court. The question in this case is whether an action filed in a state court to recover damages from a national bank for allegedly charging excessive interest in violation of both “the common law usury doctrine” and an Alabama usury statute may be removed to a federal court because it actually arises under federal law. We hold that it may. Respondents are 26 individual taxpayers who made pledges of their anticipated tax refunds to secure short-term loans obtained from petitioner Beneficial National Bank, a national bank chartered under the National Bank Act. Respondents brought suit in an Alabama court against the bank and the two other petitioners that arranged the loans, seeking compensatory and punitive damages on the theory, among others, that the bank’s interest rates were usurious. App. 18-30. Their complaint did not refer to any federal law. Petitioners removed the case to the United States District Court for the Middle District of Alabama. In their notice of removal they asserted that the National Bank Act, Rev. Stat. §5197, as amended, 12 U. S. C. §85, is the exclusive provi sion governing the rate of interest that a national bank may lawfully charge, that the rates charged to respondents complied with that provision, that Rev. Stat. § 5198, 12 U. S. C. § 86, provides the exclusive remedies available against a national bank charging excessive interest, and that the removal statute, 28 U. S. C. § 1441, therefore applied. App. 81-35. The District Court denied respondents’ motion to remand the case to state court but certified the question whether it had jurisdiction to proceed with the case to the Court of Appeals pursuant to 28 U. S. C. § 1292(b). A divided panel of the Eleventh Circuit reversed. Anderson v. H&R Block, Inc., 287 F. 3d 1038 (2002). The majority held that under our “well-pleaded complaint” rule, removal is generally not permitted unless the complaint expressly alleges a federal claim and that the narrow exception from that rule known as the “complete preemption doctrine” did not apply because it could “find no" }, { "docid": "22760366", "title": "", "text": "same way. 481 U. S., at 65. Second, the legislative history of ERISA unambiguously described an intent to treat such actions “as arising under the laws of the United States in similar fashion to those brought under section 301 of the Labor-Management Relations Act of 1947.” Id., at 65-66 (internal quotation marks and emphasis omitted). Thus, a state claim may be removed to federal court in only two circumstances — when Congress expressly so provides, such as in the Price-Anderson Act, supra, at 6, or when a federal statute wholly displaces the state-law cause of action through complete pre-emption. When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law. This claim is then removable under 28 U. S. C. § 1441(b), which authorizes any claim that “arises under” federal law to be removed to federal court. In the two categories of cases where this Court has found complete preemption — certain causes of action under the LMRA and ERISA — the federal statutes at issue provided the exclusive cause of action for the claim asserted and also set forth procedures and remedies governing that cause of action. See 29 U. S. C. § 1132 (setting forth procedures and remedies for civil claims under ERISA); § 185 (describing procedures and remedies for suits under the LMRA). III Count IV of respondents’ complaint sought relief for “usury violations” and claimed that petitioners “charged . .. excessive interest in violation of the common law usury doctrine” and violated “Alabama Code §8-8-1, et seq. by charging excessive interest.” App. 28. Respondents’ complaint thus expressly charged petitioners with usury. Metropolitan Life, Avco, and Franchise Tax Board provide the framework for answering the dispositive question in this case: Does the National Bank Act provide the exclusive cause of action for usury claims against national banks? If so, then the cause of action necessarily arises under federal law and the case is removable. If not, then the complaint does" }, { "docid": "22760368", "title": "", "text": "not arise under federal law and is not removable. Sections 85 and 86 serve distinct purposes. The former sets forth the substantive limits on the rates of interest that national banks may charge. The latter sets forth the elements of a usury claim against a national bank, provides for a 2-year statute of limitations for such a claim, and prescribes the remedies available to borrowers who are charged higher rates and the procedures governing such a claim. If, as petitioners asserted in their notice of removal, the interest that the bank charged to respondents did not violate §85 limits, the statute unquestionably pre-empts any common-law or Alabama statutory rule that would treat those rates as usurious. The section would therefore provide the petitioners with a complete federal defense. Such a federal defense, however, would not justify removal. Caterpillar Inc. v. Williams, 482 U. S. 386, 393 (1987). Only if Congress intended § 86 to provide the exclusive cause of action for usury claims against national banks would the statute be comparable to the provisions that we construed in the Avco and Metropolitan Life cases. In a series of cases decided shortly after the Act was passed, we endorsed that approach. In Farmers' and Mechanics’ Nat. Bank v. Dearing, 91 U. S. 29, 32-33 (1875), we rejected the borrower’s attempt to have an entire debt forfeited, as authorized by New York law, stating that the various provisions of §§ 85 and 86 “form a system of regulations ... [a]ll the parts [of which] are in harmony with each other and cover the entire subject,” so that “the State law would have no bearing whatever upon the case.” We also observed that “[i]n any view that can be taken of [§86], the power to supplement it by State legislation is conferred neither expressly nor by implication.” Id., at 35. In Evans v. National Bank of Savannah, 251 U. S. 108, 114 (1919), we stated that “federal law .. . . completely defines what constitutes the taking of usury by a national bank, referring to the state law only to determine the maximum" }, { "docid": "22760362", "title": "", "text": "clear congressional intent to permit removal under §§85 and 86.” Id., at 1048. Because this holding conflicted with an Eighth Circuit decision, Kris- pin v. May Dept. Stores Co., 218 F. 3d 919 (2000), we granted certiorari. 537 U. S. 1169 (2003). A civil action filed in a state court may be removed to federal court if the claim is one “arising under” federal law. § 1441(b). To determine whether the claim arises under federal law, we examine the “well pleaded” allegations of the complaint and ignore potential defenses: “[A] suit arises under the Constitution and laws of the United States only when the plaintiff’s statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense is invalidated by some provision of the Constitution of the United States.” Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149, 152 (1908); see Taylor v. Anderson, 234 U. S. 74 (1914). Thus, a defense that relies on the preclusive effect of a prior federal judgment, Rivet v. Regions Bank of La., 522 U. S. 470 (1998), or the pre-emptive effect of a federal statute, Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1 (1983), will not provide a basis for removal. As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim. Congress has, however, created certain exceptions to that rule. For example, the Price-Anderson Act contains an unusual pre-emption provision, 42 U. S. C. § 2014(hh), that not only gives federal courts jurisdiction over tort actions arising out of nuclear accidents but also expressly provides for removal of such actions brought in state court even when they assert only state-law claims. See El Paso Natural Gas Co. v. Neztsosie, 526 U. S. 473, 484-485 (1999). We have also construed §301 of the Labor Management Relations Act, 1947 (LMRA), 29 U. S. C." }, { "docid": "22743693", "title": "", "text": "William Boyle. Petitioners removed the case from state court to the United States District Court for the Western District of Pennsylvania under 28 U. S. C. § 1441(a), which allows a defendant to remove an action that falls within the original jurisdiction of the federal district courts. Petitioners stated that the entire lawsuit fell within the original jurisdiction, and hence within the removal jurisdiction, of the District Court because the complaint stated a claim arising under the Age Discrimination in Employment Act of 1967, 81 Stat. 602, as amended, 29 U. S. C. §§621-634, and the state-law claims in the complaint were pendent to this federal-law claim. Respondents did not contest the removal. Six months later, respondents moved to amend their complaint to delete the allegations of age discrimination and defamation and the request for damages for loss of consortium. In this motion, respondents stated that they now believed these claims were not tenable. At the same time, respondents filed a motion, conditional upon amendment of the complaint, to remand the suit to state court. Respondents noted that the amendment would eliminate their sole federal-law claim, which had provided the basis for removal of the case, and argued that a remand to state court was appropriate in these circumstances. After granting the motion to amend, the District Court remanded the remaining claims to the state court in which respondents initially had filed the action. Boyle v. Carnegie-Mellon University, Civ. Action No. 84-2285 (Oct. 10, 1985). In its opinion, the District Court first examined whether any provision of the federal removal statute, 28 U. S. C. §§ 1441-1451, supported a remand. The court noted that two sections of the statute authorize district courts to remand after removal. Under 28 U. S. C. § 1447(c), a court shall remand any case that “was removed improvidently and without jurisdiction”; under 28 U. S. C. § 1441(c), a court may remand any claim that is both independently nonremovable and “separate and independent” of the claim providing the basis for removal of the case. The court held that § 1447(c) did not apply because the" }, { "docid": "22673547", "title": "", "text": "(LMRA), 61 Stat. 156, 29 U. S. C. § 185, did not apply to this case. 763 F. 2d, at 220. We granted certiorari, 475 U. S. 1009 (1986), and now reverse. II Under our decision in Pilot Life Ins. Co. v. Dedeaux, ante, p. 41, Taylor’s common law contract and tort claims are preempted by ERISA. This lawsuit “relate[s] to [an] employee benefit plan.” § 514(a), 29 U. S. C. § 1144(a). It is based upon common law of general application that is not a law regulating insurance. See Pilot Life Ins. Co. v. Dedeaux, ante, at 48-51. Accordingly, the suit is pre-empted by § 514(a) and is not saved by § 514(b)(2)(A). Ante, at 48. Moreover, as a suit by a beneficiary to recover benefits from a covered plan, it falls directly under § 502(a)(1)(B) of ERISA, which provides an exclusive federal cause of action for resolution of such disputes. Ante, at 56. I — I HH 1 — I The century-old jurisdictional framework governing removal of federal question cases from state into federal courts is described in Justice Brennan’s opinion for a unanimous Court in Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1 (1983). By statute “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U. S. C. § 1441(a). One category of cases over which the district courts have original jurisdiction are “federal question” cases; that is, those cases “arising under the Constitution, laws, or treaties of the United States.” 28 U. S. C. § 1331. It is long settled law that a cause of action arises under federal law only when the plaintiff’s well-pleaded complaint raises issues of federal law. Gully v. First National Bank, 299 U. S. 109 (1936); Louisville & Nashville R. Co. v. Mottley, swpra. The “well-pleaded complaint rule” is the" }, { "docid": "22110033", "title": "", "text": "Discover seeks to arbitrate that controversy, but Vaden refuses to do so. Resolution of the controversy is governed by federal law, specifically the FDIA. There is no dispute about that. In the absence of the arbitration agreement, a federal court “would have jurisdiction... of the subject matter of a suit arising out of the controversy between the parties,” 9 U. S. C. §4, whether the suit were brought by Vaden or Discover. The District Court therefore may exercise jurisdiction over this petition under §4 of the Federal Arbitration Act. Discover apparently had no access to a federal forum for its suit against Vaden on the basis of diversity-of-citizenship jurisdiction. Under that head of federal-court jurisdiction, the amount in controversy must “exceed] ... $75,000.” 28 U. S. C. § 1332(a). Vaden’s preference for court adjudication is unsurprising. The arbitration clause, framed by Discover, prohibited presentation of “any claims as a representative or member of a class.” App. 45 (capitalization omitted). Section 4 reads, in relevant part: “A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement.” 9 U. S. C. §4. Our disposition of this case makes it unnecessary to take up the question of § 27(a)’s preemptive force generally or in the particular context of Discover’s finance charges. We therefore express no opinion on those issues. Cf. Beneficial Nat. Bank v. Anderson, 539 U. S. 1, 9-10 (2003) (holding that the National Bank Act, 12 U. S. C. §§85, 86, completely preempts state-law usury claims against national banks). But see 489 F. 3d 594, 612 (CA4 2007) (dissenting opinion) (observing that the passage from Wright & Miller referenced by the majority “makes clear that the doctrine of complete preemption is exclusively focused on claims" }, { "docid": "22760361", "title": "", "text": "Stat. §5197, as amended, 12 U. S. C. §85, is the exclusive provi sion governing the rate of interest that a national bank may lawfully charge, that the rates charged to respondents complied with that provision, that Rev. Stat. § 5198, 12 U. S. C. § 86, provides the exclusive remedies available against a national bank charging excessive interest, and that the removal statute, 28 U. S. C. § 1441, therefore applied. App. 81-35. The District Court denied respondents’ motion to remand the case to state court but certified the question whether it had jurisdiction to proceed with the case to the Court of Appeals pursuant to 28 U. S. C. § 1292(b). A divided panel of the Eleventh Circuit reversed. Anderson v. H&R Block, Inc., 287 F. 3d 1038 (2002). The majority held that under our “well-pleaded complaint” rule, removal is generally not permitted unless the complaint expressly alleges a federal claim and that the narrow exception from that rule known as the “complete preemption doctrine” did not apply because it could “find no clear congressional intent to permit removal under §§85 and 86.” Id., at 1048. Because this holding conflicted with an Eighth Circuit decision, Kris- pin v. May Dept. Stores Co., 218 F. 3d 919 (2000), we granted certiorari. 537 U. S. 1169 (2003). A civil action filed in a state court may be removed to federal court if the claim is one “arising under” federal law. § 1441(b). To determine whether the claim arises under federal law, we examine the “well pleaded” allegations of the complaint and ignore potential defenses: “[A] suit arises under the Constitution and laws of the United States only when the plaintiff’s statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense is invalidated by some provision of the Constitution of the United States.” Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149, 152 (1908); see Taylor v. Anderson, 234 U." } ]

[ { "docid": "5810128", "title": "", "text": "privilege on behalf of its clients with respect to materials covered by the privilege. Finally, it is not contended that there is any other impediment to the law firm’s raising the privilege defense even though some of its members may be the sole objects of the criminal investigation supporting the search warrant. It is, of course, clear that the crime-fraud exception is a limitation on the right of a client to assert the privilege, either directly or through his attorney, with respect to pertinent documents seized by the government, when the client is charged with continuing or planned criminal activity. See In re Grand Jury Proceedings (FMC), above, at 803. The law firm contends that the exception stops there. In other words, it argues that the crime-fraud exception does not apply to defeat the client’s privilege where the pertinent alleged criminality is solely that of the law firm. We cannot agree. It is not apparent to us what interest is truly served by permitting an attorney to prevent this type of investigation of his own alleged criminal conduct by asserting an innocent client’s privilege with respect to documents tending to show criminal activity by the lawyer. On the contrary, the values implicated, particularly the search for the truth, weigh heavily in favor of denying the privilege in these circumstances. Case law in work product situations lends support to this conclusion. Moody v. Internal Revenue Service, 654 F.2d 795 (D.C.Cir.1981); In re Sealed Case, 676 F.2d 793 (D.C.Cir.1982); In re Doe, 662 F.2d 1073 (4th Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982); and see Appeal of Hughes, 633 F.2d 282 (3d Cir.1980). Although we may be addressing an issue of first impression, we see no persuasive reason why the considerations applicable to our work product analysis should not tilt the scales in favor of disclosure in the attorney-client setting. We recognize some resulting erosion of the attorney-client privilege but we think societal interests outweigh that protection here. Furthermore, disclosure can be obtained only in a context where the district court will first evaluate, in camera," } ]

[ { "docid": "13835904", "title": "", "text": "that the information sought “is not protected from disclosure by Rule 1.6” of Pennsylvania’s Rules of Professional Conduct. Rule 1.6 is a confidentiality provision and states that “[a] lawyer shall not reveal information relating to representation of a client unless the client consents after consultation.” There are exceptions to this broad ethical obligation. For instance, it does not extend to disclosures impliedly authorized in order to represent the client, or those necessary to prevent certain criminal or fraudulent acts or to comply with Rule 3.3, which requires that lawyers act with candor toward tribunals. Pa.Rules of Professional Conduct Rule 1.6(a)-(c)(2). Although the duty to keep client information confidential and the attorney-client privilege stem from similar policy consider ations, the former is substantially broader than the latter. See, e.g., S. Gillers & N. Dorsen, Regulation of Lawyers 287-88 (1985); G. Hazard & S. Koniak, The Law and Ethics of Lawyering, ch. 4 (1990); Subin, supra, 70 Iowa L.Rev. at 1112-13, 1145; Zacharias, Rethinking Confidentiality, 74 Iowa L.Rev. 351, 355 n. 18, 363 n. 55 (1989); cf. Universal Athletic Sales Co., 546 F.2d at 539. In particular, while the attorney-client privilege extends only to confidences learned from the client, Rockwell Int'l, 897 F.2d at 1264; In re Grand Jury Proceedings, 791 F.2d at 665; 8 J. Wigmore, Evidence § 2317, at 618-19 (J. McNaughton rev. 1961), the ethical prohibition against disclosure generally applies no matter what the source of information about the client. The commentary to Rule 1.6 underscores this: “The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.” (Emphasis added). Of course, the responsibility to safeguard client secrets is an important, time-honored one and is not in itself objectionable. Rule 3.10, however, converts the confidentiality rule into a legal mandate, that is, a privilege, because it requires the court to withhold altogether approval of a subpoena directed to an attorney if the information" }, { "docid": "23369272", "title": "", "text": "Gross, Kaplan, Phillips, Kratky, Lalich, Swick and Jennings, Jr., and cross-appeal by Sitomer, Sitomer and Porges, A. L. Sitomer, S. J. Sitomer and R. E. Porges insofar as said orders failed to enjoin plaintiffs from disclosing confidential information regarding Empire and to disqualify plaintiffs from representing themselves or a similar class of Empire stockholders, appeals dismissed. To the extent that the orders appealed from prohibit Goldberg from acting as a party or as an attorney for a party in any action arising out of the facts herein alleged, or from disclosing material information except on discovery or at trial, they are affirmed. . Code of Professional Responsibility Canon 4 A lawyer Should Preserve the Confidence and Secrets of a Client Ethical Considerations EC 4-1 Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him. EC 4-4 The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of his client. The ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge. A lawyer should endeavor to act in a manner which preserves the evidentiary privilege .... EC 4^5 A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of his client after full disclosure, such information for his own purposes .... EC 4-6 The obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment .... Disciplinary Rules DR 4-101 Preservation of Confidences and Secrets of a Client. (A) “Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would" }, { "docid": "22645143", "title": "", "text": "conduct that the lawyer knows to be illegal or fraudulent.” This provision has been adopted by Iowa, and is binding on all lawyers who appear in its courts. See Iowa Code of Professional Responsibility for Lawyers (1985). The more recent Model Rules of Professional Conduct (1983) similarly admonish attorneys to obey all laws in the course of representing a client: “RULE 1.2 Scope of Representation “(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent. . . .” Both the Model Code of Professional Responsibility and the Model Rules of Professional Conduct also adopt the specific exception from the attorney-client privilege for disclosure of perjury that his client intends to commit or has committed. DR 4-101(C)(3) (intention of client to commit a crime); Rule 3.3 (lawyer has duty to disclose falsity of evidence even if disclosure compromises client confidences). Indeed, both the Model Code and the Model Rules do not merely authorize disclosure by counsel of client perjury; they require such disclosure. See Rule 3.3(a)(4); DR 7-102(B)(l); Committee on Professional Ethics and Conduct of Iowa State Bar Assn. v. Crary, 245 N. W. 2d 298 (Iowa 1976). These standards confirm that the legal profession has accepted that an attorney’s ethical duty to advance the interests of his client is limited by an equally solemn duty to comply with the law and standards of professional conduct; it specifically ensures that the client may not use false evidence. This special duty of an attorney to prevent and dis close frauds upon the court derives from the recognition that perjury is as much a crime as tampering with witnesses or jurors by way of promises and threats, and undermines the administration of justice. See 1 W. Burdick, Law of Crime §§293, 300, 318-336 (1946). The offense of perjury was a crime recognized at common law, id., at p. 475, and has been made a felony in most states by statute, including Iowa. Iowa Code § 720.2 (1985). See generally 4 C. Torcia, Wharton’s Criminal Law §631 (14th ed. 1981)." }, { "docid": "1067327", "title": "", "text": "suspended by any panel of the court on its own motion for good cause shown. A.C.M.R. R. 25.1. Our order to the movants was clearly permissible under this provision. 3. Attorney-Client Privilege The movants’ assertion that they need not comply with this court’s order because they would be revealing privileged information in violation of the attorney-client privilege is without merit. We first observe that the attorney-client privilege is not at issue. The attorney-client privilege is a rule of evidence that permits a client to prevent the admission into evidence of “confidential communications made for the purpose of facilitating the rendition of professional legal services to the client,” between the client and his lawyer or other persons within the scope of the privilege. United States v. Henson, 20 M.J. 620 (A.C.M.R.1985); see also United States v. Ankeny, 30 M.J. 10 n. 6 (C.M.A.1990); Mil.R.Evid. 502. The fundamental purpose of the privilege is to encourage clients to openly discuss legally damaging matters with their attorneys without fear that later disclosure of those matters may result in adverse legal consequences. Generally, only the client may invoke the privilege. Mil. R.Evid. 502(a). An exception to the general rule provides that, where the client is unable to invoke the privilege, the attorney may do so on the client’s behalf. Mil. R.Evid. 502(c). But that exception does not apply where a former client has alleged his attorney was incompetent. The attorney-client privilege does not bar disclosure of communications “relevant to an issue of breach of duty by the lawyer to the client or the client to the lawyer.” United States v. Mays, 33 M.J. at 458; Mil.R.Evid. 502(d)(3). Therefore, a trial defense counsel’s affidavit in response to an allegation of ineffectiveness by a former client would not be inadmissible because of the attorney-client privilege. The movants are actually contending that compliance with our order would cause them to violate their ethical obligation to maintain the confidentiality of communications and other information obtained during their representation of the appellant. AR 27-26, Rule 1.6; ABA Model Rules of Professional Conduct Rule 1.6 (1992) [hereinafter ABA Model Rules]. The" }, { "docid": "22645142", "title": "", "text": "of the judicial office, which we are bound to uphold, or corruption of any person or persons exercising a public office or private trust, or deception or betrayal of the public. ... He must. . . observe and advise his client to observe the statute law . . . .” Of course, this Canon did no more than articulate centuries of accepted standards of conduct. Similarly, Canon 37, adopted in 1928, explicitly acknowledges as an exception to the attorney’s duty of confidentiality a client’s announced intention to commit a crime: “The announced intention of a client to commit a crime is not included within the confidences which [the attorney] is bound to respect.” These principles have been carried through to contemporary codifications of an attorney’s professional responsibility. Disciplinary Rule 7-102 of the Model Code of Professional Responsibility (1980), entitled “Representing a Client Within the Bounds of the Law,” provides: “(A) In his representation of a client, a lawyer shall not: “(4) Knowingly use perjured testimony or false evidence. “(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.” This provision has been adopted by Iowa, and is binding on all lawyers who appear in its courts. See Iowa Code of Professional Responsibility for Lawyers (1985). The more recent Model Rules of Professional Conduct (1983) similarly admonish attorneys to obey all laws in the course of representing a client: “RULE 1.2 Scope of Representation “(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent. . . .” Both the Model Code of Professional Responsibility and the Model Rules of Professional Conduct also adopt the specific exception from the attorney-client privilege for disclosure of perjury that his client intends to commit or has committed. DR 4-101(C)(3) (intention of client to commit a crime); Rule 3.3 (lawyer has duty to disclose falsity of evidence even if disclosure compromises client confidences). Indeed, both the Model Code and the Model Rules do not merely authorize disclosure by counsel of client perjury; they require such" }, { "docid": "23345688", "title": "", "text": "U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981); Whitehouse v. United States Dist. Court for the Dist. of R.I., 53 F.3d 1349, 1360 (1st Cir.1995), and we need not wax longiloquent in its defense. Suffice to say that the interest in preserving a durable barrier against disclosure of privileged attorney-client information is shared both by particular litigants and by the public, and it is an interest of considerable magnitude. Indeed, this is precisely the kind of countervailing concern that is capable of overriding the general preference for public access to judicial records. See Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1073 (3d Cir.1984); Crystal Grower’s Corp. v. Dobbins, 616 F.2d 458, 461-62 (10th Cir.1980). In this instance, we discern no evidence that the district court identified and balanced the interests at stake, or that the court endeavored to determine whether any information contained in Siedle’s filings actually fell within the ambit of the attorney-client privilege. In the circumstances at hand, these omissions amount to an abuse of discretion. We explain briefly. The information that Putnam wishes to keep under seal appears on its face to be subject to both the attorney-client privilege and the parallel confidentiality requirements imposed by the Agreement. In the idiom of DR 4-101, the information is seemingly of the type “gained in the professional relationship,” and is matter “that the client has requested be held inviolate” and that “would likely ... be detrimental to the client” if revealed. Supreme Judicial Court Rule 3:07, Canon 4, DR 4-101. Indeed, Siedle does not seriously contend that the information falls beyond the ken of these requirements. He urges instead that an exception governs here because disclosure of the information is necessary “to defend himself ... against an accusation of wrongful conduct.” Id. DR 4-101(C)(4). We find this argument unpersuasive. Massachusetts narrowly construes the exceptions to an attorney’s duty to guard client confidences. See GTE Prods. Corp. v. Stewart, 421 Mass. 22, 653 N.E.2d 161, 166-67 (1995). To be sure, DR 4-101(C)(4)’s disclosure provisions empower an attorney to reveal information that ordinarily would be sacrosanct in order" }, { "docid": "6420841", "title": "", "text": "Government and against Berger, will waive his privilege over all communications he has had with Berger, whether or not those communications are related to any aspect of Formato’s cooperation with the Government. The Government concedes Formato waives his privilege with respect to the subject matter of any attorney-client communications Formato has discussed with the Government or will disclose at trial. However, the Government disputes the privilege over all attorney-client communications is waived simply because Formato testifies for the Government. Although caselaw discussing this issue is scarce, I am persuaded a Government witness waives the confidentiality of those attorney-client communications the subject matter of which the witness discusses with the Government or discloses at trial. Consequently, such matters may properly be the subject of cross-examination at trial. However, I do not accept the suggestion a Government witness waives the privilege over attorney-client communications unrelated to discussions he has had with the Government or discloses at trial. Even in the unique circumstances of this case, in which the attorney to whom the communications were made is a defendant against whom the witness may testify, the witness does not waive the privilege simply because he takes the stand. Because Berger is a New York attorney, it is appropriate to assess his proposed cross-examination of Formato in light of New York’s ethics rules. Ethical Consideration 4-5 of Canon 4 of New York’s Code of Professional Responsibility provides: “A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of his client after full disclosure, such information for his own purposes.” Disciplinary Rule 4-101(B) provides, in relevant part: “Except where permitted under DR 4-101(C), a lawyer shall not knowingly: (1) Reveal a confidence or secret of his client____(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.” (Footnotes omitted). Because I am advised Formato has not consented to the proposed nature of Berger’s cross-examination, the court must begin" }, { "docid": "656451", "title": "", "text": "Silverman’s actions. Memorandum of Law of in Support of Mov-ant’s Right to Testify, dated April 1, 1993, at 2 (emphasis added). Mr. Seidel also signed various papers which stated that he was acting on behalf of his wife and others. Accordingly, the Court holds that Mr. Seidel’s capacity in this matter is unquestionably as an attorney engaged in representing clients which include his wife and others (not named). B. Rules Applicable to Testimony by an Engaged Attorney The conduct of attorneys in New York is governed by the New York Code of Professional Responsibility which is set forth as an appendix to New York’s Judiciary Law. See N.Y. Code of Professional Responsibility DR 1-101 — 9-102 (1993) (hereinafter “N.Y.Code Prof.Resp.”). New York Code of Professional Responsibility Disciplinary Rules 5-101 and 5-102 address whether an attorney acting as an advocate may call him or herself to testify as a witness in the proceeding. N.Y.Code Prof.Resp. DR 5-101, 5-102. Disciplinary Rule 5-101 instructs lawyers not to accept employment which contemplates the lawyer’s acting before a court if it is known or is obvious that the lawyer ought to be called as a witness on behalf of the client. N.Y.Code Prof.Resp. DR 5-101. In relevant part, Disciplinary Rule 5-101 provides: A lawyer shall not act, or accept employment that contemplates the lawyer’s acting, as an advocate before any tribunal if the lawyer knows or it is obvious that the lawyer ought to be called as a witness on behalf of the client.... N.Y.Code Prof.Resp. DR 5-101 (1993). Disciplinary Rule 5-102, in distinction, applies where an attorney, after accepting employment in contemplated litigation, learns that he or she will or ought to be called as a witness on behalf of the client. N.Y.Code Prof.Resp. DR 5—102(b) (1993). Disciplinary Rule 5—102(b) provides, in relevant part: If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer ought to be called as a witness on behalf of the client, the lawyer shall withdraw as an advocate before the tribunal.... Id. (emphasis added). We accordingly examine when Mr. Seidel" }, { "docid": "5463271", "title": "", "text": "produced to the court for in camera inspection. The matter was taken on submission following filing of post-hearing briefs. Discussion This disqualification motion requires a determination, in the first instance, wheth er Haber has wrongly communicated to plaintiffs’ counsel information that was protected by the attorney-client relationship he formerly had with certain of the defendants, and, if so, whether plaintiffs’ counsel, by virtue of their receipt of such information, should be disqualified from continuing with their representation. The Confidentiality of the Attorney-Client Relationship The former question demands examination of Haber’s duties to his former clients. The principles of confidentiality that govern the relationship between attorney and client are the subject of two distinct bodies of law: the attorney-client privilege (which includes the work-product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. First Fed. Sav. & Loan v. Oppenheim, Appel, Dixon, 110 F.R.D. 557, 564 n. 12 (S.D.N.Y.1986) (quoting Comment to Rule 1.6 of the Model Rules of Professional Conduct). The scope of the ethical rules is not equivalent to the that of the evidentiary privilege. The ethical rules of client-lawyer confidentiality forbid a lawyer from knowingly disclosing a “confidence” or “secret” of his client. Disciplinary Rule 4-101, American Bar Association Code of Professional Responsibility; see also N.Y. Jud.Law., Code of Professional Responsibility, DR 4-101(A) (same). Rule 4-101(A) defines a “confidence” to be any information that is protected by the attorney-client privilege under applicable law (thus including all material falling within the protection of the evidentiary privilege); the broader category of “secret” embraces all other information “gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” Id. This Disciplinary Rule is mandatory, establishing" }, { "docid": "6420842", "title": "", "text": "defendant against whom the witness may testify, the witness does not waive the privilege simply because he takes the stand. Because Berger is a New York attorney, it is appropriate to assess his proposed cross-examination of Formato in light of New York’s ethics rules. Ethical Consideration 4-5 of Canon 4 of New York’s Code of Professional Responsibility provides: “A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of his client after full disclosure, such information for his own purposes.” Disciplinary Rule 4-101(B) provides, in relevant part: “Except where permitted under DR 4-101(C), a lawyer shall not knowingly: (1) Reveal a confidence or secret of his client____(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.” (Footnotes omitted). Because I am advised Formato has not consented to the proposed nature of Berger’s cross-examination, the court must begin with the presumption Formato will not waive the privilege simply by taking the witness stand for the Government. Berger has cited to two cases, United States ex rel. Kachinski v. Cavell, 453 F.2d 581 (3d Cir.1971), and United States v. Rispo, 460 F.2d 965 (3d Cir.1972), to support his argument on this motion. Those cases, however, do not carry Berger’s point to the lengths he asserts. In Cavell, the Third Circuit merely noted a Government witness waived the confidentiality of attorney communications only to the extent he discusses such confidential communications with the Government: “[The witness] waived any attorney-client privilege by making a statement to the police about what he knew of the crimes for which [the defendant] was convicted, so that there was nothing to prevent the attorney from questioning [the witness] on behalf of [the defendant].” Cavell, 453 F.2d at 583 n. 6. In Rispo, the Third Circuit found a defense attorney who had represented another co-defendant at the outset of the case should have disqualified himself from continuing to represent his remaining" }, { "docid": "1067328", "title": "", "text": "legal consequences. Generally, only the client may invoke the privilege. Mil. R.Evid. 502(a). An exception to the general rule provides that, where the client is unable to invoke the privilege, the attorney may do so on the client’s behalf. Mil. R.Evid. 502(c). But that exception does not apply where a former client has alleged his attorney was incompetent. The attorney-client privilege does not bar disclosure of communications “relevant to an issue of breach of duty by the lawyer to the client or the client to the lawyer.” United States v. Mays, 33 M.J. at 458; Mil.R.Evid. 502(d)(3). Therefore, a trial defense counsel’s affidavit in response to an allegation of ineffectiveness by a former client would not be inadmissible because of the attorney-client privilege. The movants are actually contending that compliance with our order would cause them to violate their ethical obligation to maintain the confidentiality of communications and other information obtained during their representation of the appellant. AR 27-26, Rule 1.6; ABA Model Rules of Professional Conduct Rule 1.6 (1992) [hereinafter ABA Model Rules]. The ethical duty of confidentiality is a rule of conduct similar in purpose to the protection provided by the attorney-client privilege but broader in scope in that it covers more kinds of information. It is also similar in duration as both the privilege and the ethical duty remain viable even after the attorney-client relationship has terminated. There are differences between the two. For example, the attorney-client privilege bars a court or other governmental tribunal from compelling the revelation of confidential communications between the attorney and client or the agents of either of them. In contrast, the ethical duty prohibits an attorney from voluntarily revealing or using any information obtained in the course of the representation regardless of the source of that information. The foundational principle, promulgated in both the Army and ABA Model Rules, provides, “A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and as stated in” the sub-paragraphs of the respective" }, { "docid": "23345689", "title": "", "text": "information that Putnam wishes to keep under seal appears on its face to be subject to both the attorney-client privilege and the parallel confidentiality requirements imposed by the Agreement. In the idiom of DR 4-101, the information is seemingly of the type “gained in the professional relationship,” and is matter “that the client has requested be held inviolate” and that “would likely ... be detrimental to the client” if revealed. Supreme Judicial Court Rule 3:07, Canon 4, DR 4-101. Indeed, Siedle does not seriously contend that the information falls beyond the ken of these requirements. He urges instead that an exception governs here because disclosure of the information is necessary “to defend himself ... against an accusation of wrongful conduct.” Id. DR 4-101(C)(4). We find this argument unpersuasive. Massachusetts narrowly construes the exceptions to an attorney’s duty to guard client confidences. See GTE Prods. Corp. v. Stewart, 421 Mass. 22, 653 N.E.2d 161, 166-67 (1995). To be sure, DR 4-101(C)(4)’s disclosure provisions empower an attorney to reveal information that ordinarily would be sacrosanct in order to defend himself against charges of ineffective assistance, see Commonwealth v. Woodberry, 26 Mass.App.Ct. 636, 530 N.E.2d 1260, 1261 (1988), or professional malpractice, see Glenn v. Aiken, 409 Mass. 699, 569 N.E.2d 783, 788 (1991). While Woodberry illustrates that the “accusation of wrongful conduct” of which DR 4-101(C)(4) speaks need not necessarily involve an actual suit filed by a quondam client against his former attorney, it cannot be gainsaid that DR 4 — 101(C)(4) creates a defensive mechanism for lawyers under siege. Siedle has not pointed us to, and our research has failed to unearth, a single reported case from any jurisdiction in which an attorney has been permitted to use confidential information offensively when the attorney chafed at the client’s criticism of his work (even if the attorney viewed that criticism as defamatory). The only reported case dealing with a similar factual situation holds precisely to the contrary. See Eckhaus v. Alfa-Laval, Inc., 764 F.Supp. 34, 37-38 (S.D.N.Y.1991). We believe that the exception is designed to function only as a shield, not as a" }, { "docid": "7345060", "title": "", "text": "“own financial, business, property, or personal interests,” unless the client gives his informed consent. Fla. Code of Professional Responsibility DR 5-101(A) (1986). In addition, a lawyer is prohibited from representing a new client if that representation is likely to have an adverse effect on the lawyer’s judgment on behalf of another client, unless both clients give their informed consent. See Fla.Code of Professional Responsibility DR 5-105(A), (C) (1986). While the firm owed these two ethical obligations to Freund alone, it owed a third ethical obligation to Freund as well as to its former clients Trent and Mills. This obligation was the firm’s duty of confidentiality under Canon 4 of the Florida Code, which requires a lawyer to “preserve the confidences and secrets of a client.” Fla.Code of Professional Responsibility, Canon 4 (1986). The term “confidences” refers to information protected by the attorney-client privilege, while the term “secrets” refers to other information gained during the professional relationship “that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” Fla.Code of Professional Responsibility DR 4-101(A) (1986). Because of this duty, a lawyer could be subject to discipline for revealing a client’s confidences or secrets or for using them either to the disadvantage of the client or for the benefit of the lawyer or a third person without the client’s informed consent. See Fla.Code of Professional Responsibility DR 4-101(B) (1986); Ford v. Piper Aircraft Corp., 436 So.2d 305, 307 (Fla. 5th DCA 1983); see also Rules Regulating the Fla. Bar 4-1.9(b) (1994). The duty of confidentiality affords broad protection to a client’s confidences and secrets. See Buntrock v. Buntrock, 419 So.2d 402, 403 (Fla. 4th DCA 1982) (noting that protection is broader than attorney-client evi-dentiary privilege). This protection “exists without regard to the nature or source of information or the fact that others share the knowledge.” Fla.Code of Professional Responsibility EC 4-4 (1986). The protection is also perpetual; a lawyer must forever preserve the confidences and secrets of every client, whether ongoing or former. See Fla. Code of" }, { "docid": "13835851", "title": "", "text": "136 U.Pa.L.Rev. 1783, 1786- 89 (1988). This revision in policy has inspired a vigorous national debate about the propriety and ramifications of compelling lawyers to testify before investigative bodies. See, e.g., Pierce & Colamarino, Defense Counsel as a Witness for the Prosecution: Curbing the Practice of Issuing Grand Jury Subpoenas to Counsel for Targets of Investigations, 36 Hastings L.J. 821 (1985); Subin, The Lawyer as Superego: Disclosure of Client Confidences to Prevent Harm, 70 Iowa L.Rev. 1091, 1178-79 (1985); Note, A Critical Appraisal of the Justice Department Guidelines for Grand Jury Subpoenas Issued to Defense Attorneys, 1986 Duke L.J. 145; Note, Grand Jury Subpoenas of a Target’s Attorney: A Need for a Preliminary Showing, 22 Ga.L.Rev. 747 (1986); Lawyer Cited for Contempt Over Fee Data, N.Y. Times, Apr. 18, 1991, at B1, col. 5; Thorn-burgh Policy Leads to a Sharp Ethics Battle, N.Y. Times, Mar. 1, 1991, at B4, col. 3; New Rule Set on Lawyer Subpoenas, Nat’l L.J., Nov. 4, 1985, at 3, 42. It also has motivated some state and federal courts to devise disciplinary rules that require prosecutors to secure judicial approval before subpoenaing attorneys. D.Mass.R. 5(d)(4)(B); Mass.S.J.C.R. 3:08 (PF 15); Tenn.Ct.R.DR 7-103; Va.S.Ct.R. 3A:12 (codified as DR 8-102(A)). This roster now includes the Supreme Court of Pennsylvania, which has enacted Rule 3.10 of the Rules of Professional Conduct. The Rule provides: A public prosecutor or other governmental lawyer shall not, without prior judicial approval, subpoena an attorney to appear before a grand jury or other tribunal investigating criminal activity in circumstances where the prosecutor or other governmental lawyer seeks to compel the attorney/witness to provide evidence concerning a person who is or has been represented by the attorney/witness. Adopted Nov. 7, 1988, effective Nov. 26, 1988. COMMENT It is intended that the required “prior judicial approval” will normally be withheld unless, after a hearing conducted with due regard for the need for appropriate secrecy, the court finds (1) the information sought is not protected from disclosure by Rule 1.6 [concerning confidentiality of information], the attorney-client privilege or the work product doctrine; (2) the evidence sought is" }, { "docid": "7345061", "title": "", "text": "likely to be detrimental to the client.” Fla.Code of Professional Responsibility DR 4-101(A) (1986). Because of this duty, a lawyer could be subject to discipline for revealing a client’s confidences or secrets or for using them either to the disadvantage of the client or for the benefit of the lawyer or a third person without the client’s informed consent. See Fla.Code of Professional Responsibility DR 4-101(B) (1986); Ford v. Piper Aircraft Corp., 436 So.2d 305, 307 (Fla. 5th DCA 1983); see also Rules Regulating the Fla. Bar 4-1.9(b) (1994). The duty of confidentiality affords broad protection to a client’s confidences and secrets. See Buntrock v. Buntrock, 419 So.2d 402, 403 (Fla. 4th DCA 1982) (noting that protection is broader than attorney-client evi-dentiary privilege). This protection “exists without regard to the nature or source of information or the fact that others share the knowledge.” Fla.Code of Professional Responsibility EC 4-4 (1986). The protection is also perpetual; a lawyer must forever preserve the confidences and secrets of every client, whether ongoing or former. See Fla. Code of Professional Responsibility EC 4-6 (1986); Rules Regulating the Fla. Bar 4-1.9(b) (1994); State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So.2d 630, 632 (Fla.1991). In deciding to accept Freund as a client, the firm was required to determine that it could represent him without violating any of the above ethical obligations that it owed him. Given that it had previously represented two people — Trent, Freund’s co-defendant, and Mills, a witness for the prosecution in Freund’s case who could have been charged with several crimes arising from her participation in the events surrounding Walker’s murder — with interests materially adverse to Freund’s interests, however, the firm faced a substantial likelihood that its ethical obligations to Freund would come into direct and irreconcilable conflict with its ethical obligations to its former clients. The initial question that-must be answered in order to determine the significance of the firm’s potential ethical conflict to our Sixth Amendment analysis under Cuyler is this: does a lawyer’s Sixth Amendment duty to provide its current client with competent representation require it" }, { "docid": "3859844", "title": "", "text": "it should seek to recover from them. That asks too much of human nature, given that a fair and thorough review might lead the corporation to sue the former clients. We believe that it is unreasonable for a board of directors to entrust its investigation of a shareholder’s demand to conflicted counsel. In addition to the problem of lingering and divided loyalties, a law firm that had previously defended the alleged wrongdoers would be hampered in its investigation of the shareholder’s allegations by its continuing duty to preserve the secrets and confidences of its former clients. Absent consent, the Code of Professional Responsibility bars a lawyer from revealing a confidence or secret of his client. See Ga.Code of Professional Responsibility DR 4-101(B). Although “confidences” as used in the Code refers solely to communications protected by the attorney-client privilege, id. DR 4-101(A), “secrets” is a broader concept and covers all “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” Id. (emphasis added). The lawyer should not accept employment that “might require such disclosure.” Id. EC 4-5. A lawyer’s ethical obligation of confidentiality continues even after the termination of the lawyer-client relationship, id. EC 4-6, and includes an obligation to exercise care “to prevent the disclosure of the confidences and secrets of one client to another.” Id. EC 4-5. The lawyer’s ethical duty of confidentiality is much broader than the scope of the attorney-cliént evidentiary privilege. Brennan’s Inc. v. Brennan’s Restaurants, Inc., 590 F.2d 168, 172 (5th Cir.1979). As a result, a law firm that had previously represented an alleged wrongdoer would be obligated not to reveal any non-public information, from whatever source derived, obtained in the course of the prior representation. By definition, the duty protects information acquired by means other than privileged communications with the client. Therefore, much of the protected information might have been uncovered by an investigation conducted by truly independent counsel on behalf of the corporation. But counsel who has previously represented the" }, { "docid": "22548356", "title": "", "text": "The privilege’s purpose is to encourage clients to make a full disclosure to their attorneys. Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976). Documents within the scope of the attorney-client privilege are “zealously protected.” 8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2017 (1970) (hereinafter “Wright & Miller”); see Chore-Time Equip., Inc. v. Big Dutchman, Inc., 255 F.Supp. 1020, 1021 (W.D.Mich.1966) (“[I]t generally is acknowledged that the attorney-client privilege is so sacred and so compellingly important that the courts must, within their limits, guard it jealously.”); In re Grand Jury Subpoena Duces Tecum, 391 F.Supp. 1029, 1034 (S.D.N.Y.1975) (where one part of memorandum is privileged and doubts exist as to other parts, doubt resolved in favor of application of privilege). The privilege extends to verbal statements, documents and tangible objects conveyed by both individual and corporate clients to an attorney in confidence for the purpose of any legal advice. 8 John H. Wigmore, Evidence § 2292 (John T. McNaughton rev. ed. 1961); see also United States v. Liebman, 742 F.2d 807, 810 (3d Cir.1984). Although the privilege belongs to the client, and only the client may waive it, an attorney may assert the privilege on the client’s behalf. McCormick on Evidence § 92 (John W. Strong 4th ed. 1992). Moreover, the canons of ethics make the attorney’s common law obligation to maintain the secrecy of his communications with his client a professional mandate. See Model Rules of Professional Conduct Rule 1.6 (1983) (lawyer shall not reveal information relating to representation of client unless client consents after consultation); Model Code of Professional Responsibility DR 4-101 (1980) (lawyer is prohibited from revealing secrets or confidences of client); see also Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955, 960-61 (3d Cir.1984). But, it bears repeating that— the reason for that protection — the centrality of open client and attorney communication to the proper functioning of our adversary system of justice— “ceas[es] to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to" }, { "docid": "7345059", "title": "", "text": "lawyers had an obligation to obey Florida’s rules of legal ethics. One relevant ethical obligation was the firm’s duty under Canon 7 of the former Florida Code of Professional Responsibility to represent its client zealously. This duty requires that a lawyer “be loyal to her client and ensure that every professional decision she makes on behalf of the client is in the client's best interests.” Freund, 117 F.3d at 1572. A lawyer who intentionally prejudices or harms the interests of her client violates this duty. See Fla.Code of Professional Responsibility DR 7 — 101(A)(3) (1986). A second ethical obligation was the firm’s duty under Canon 5 of the Florida Code to “exercise independent professional judgment on behalf of a client.” Fla.Code of Professional Responsibility, Canon 5 (1986). A lawyer is required to avoid conflicts of interest in order to fulfill this duty. See Barclay v. Wainwright, 444 So.2d 956, 958 (Fla.1984). Therefore, a lawyer is prohibited from representing a potential client when the lawyer’s professional judgment will be, or reasonably may be, affected by his “own financial, business, property, or personal interests,” unless the client gives his informed consent. Fla. Code of Professional Responsibility DR 5-101(A) (1986). In addition, a lawyer is prohibited from representing a new client if that representation is likely to have an adverse effect on the lawyer’s judgment on behalf of another client, unless both clients give their informed consent. See Fla.Code of Professional Responsibility DR 5-105(A), (C) (1986). While the firm owed these two ethical obligations to Freund alone, it owed a third ethical obligation to Freund as well as to its former clients Trent and Mills. This obligation was the firm’s duty of confidentiality under Canon 4 of the Florida Code, which requires a lawyer to “preserve the confidences and secrets of a client.” Fla.Code of Professional Responsibility, Canon 4 (1986). The term “confidences” refers to information protected by the attorney-client privilege, while the term “secrets” refers to other information gained during the professional relationship “that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be" }, { "docid": "5463272", "title": "", "text": "than those where evidence is sought from the lawyer through compulsion of law. First Fed. Sav. & Loan v. Oppenheim, Appel, Dixon, 110 F.R.D. 557, 564 n. 12 (S.D.N.Y.1986) (quoting Comment to Rule 1.6 of the Model Rules of Professional Conduct). The scope of the ethical rules is not equivalent to the that of the evidentiary privilege. The ethical rules of client-lawyer confidentiality forbid a lawyer from knowingly disclosing a “confidence” or “secret” of his client. Disciplinary Rule 4-101, American Bar Association Code of Professional Responsibility; see also N.Y. Jud.Law., Code of Professional Responsibility, DR 4-101(A) (same). Rule 4-101(A) defines a “confidence” to be any information that is protected by the attorney-client privilege under applicable law (thus including all material falling within the protection of the evidentiary privilege); the broader category of “secret” embraces all other information “gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” Id. This Disciplinary Rule is mandatory, establishing the minimum level of conduct below which no lawyer can fall without risk of being subject to disciplinary action. Preliminary Statement, Code of Professional Responsibility. Haber was fully bound by this Rule of the Code, as his statements were voluntarily and informally made to plaintiffs, rather than compulsory ones made as an evidentiary witness subject to the supervision and protection of the court. Haber’s Adherence to the Code Did Haber abide by the Code? Movants argue that the disclosure of the defendants’ confidences and secrets by Haber to plaintiffs’ counsel must be irrebutt-ably presumed under Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir.1973), because Haber concededly had access to relevant information of his former clients and concededly spoke to plaintiffs’ counsel with respect to the subject matter of the litigation. That view is plainly mistaken in the present litigation context. Evidence was appropriately taken on the disclosure question because the Emle presumption “has no application” where an attorney with access to client confidences by virtue of his former representation does not seek" }, { "docid": "22548357", "title": "", "text": "see also United States v. Liebman, 742 F.2d 807, 810 (3d Cir.1984). Although the privilege belongs to the client, and only the client may waive it, an attorney may assert the privilege on the client’s behalf. McCormick on Evidence § 92 (John W. Strong 4th ed. 1992). Moreover, the canons of ethics make the attorney’s common law obligation to maintain the secrecy of his communications with his client a professional mandate. See Model Rules of Professional Conduct Rule 1.6 (1983) (lawyer shall not reveal information relating to representation of client unless client consents after consultation); Model Code of Professional Responsibility DR 4-101 (1980) (lawyer is prohibited from revealing secrets or confidences of client); see also Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955, 960-61 (3d Cir.1984). But, it bears repeating that— the reason for that protection — the centrality of open client and attorney communication to the proper functioning of our adversary system of justice— “ceas[es] to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing.” Zolin, 491 U.S. at 562-63, 109 S.Ct. at 2626. We must always keep in mind that the purpose of the crime-fraud exception is to assure that the “seal of secrecy” between lawyer and client does not extend to communications from the lawyer to the client made by the lawyer for the purpose of giving advice for the commission of a fraud or crime. The seal is broken when the lawyer’s communication is meant to facilitate future wrongdoing by the client. Where the client commits a fraud or crime for reasons completely independent of legitimate advice communicated by the lawyer, the seal is not broken, for the advice is, as the logicians explain, non causa pro causa. The communication condemned and unprotected by the attorney-client privilege is advice that is illicit because it gives direction for the commission of future fraud or crime. The advice must relate to future illicit conduct by the client; it is the causa pro causa, the advice that leads to the deed. Petitioners clearly have an interest deserving of" } ]

[ { "docid": "15325477", "title": "", "text": "could complete the voyage with safety, so far as safety depended upon known facts, or facts easily capable of ascertainment. The agreement of the canal-boat to be towed at her own risk did not exempt the tug from liability for damages occasioned by her own negligence. That liability does not arise out of the towage contract, but is imposed by law. The master of the tug was the pilot of the voyage and responsible for the navigation of both vessels. It was his duty to exercise ordinary diligence to see that the tow was properly made up, that the hawsers were of the proper length, strong and securely fastened. On the other hand, the master of a boat offering her for towage represents her as sufficiently staunch and strong to withstand the ordinary perils to be encountered on the voyage. If she be unseaworthy by reason of weakness, decay or leaks and such defects are not obvious to the master of the tug he will be absolved from responsibility where such unseaworthiness causes the damage complained of. Tbe tug undertakes only for that degree of skill, care and prudence necessary for the management of a seaworthy boat. The Margaret, 94 U. S. 494, 24 L. Ed. 146; The Quickstep, 9 Wall. 670, 19 L. Ed. 767; The Lady Pike, 21 Wall. 1, 22 L. Ed. 499; The William Murtaugh (D. C.) 3 Fed. 404; The Syracuse, 6 Blatchf. 2, Fed. Cas. No. 13,717; The Florence (D. C.) 88 Fed. 302. Various faults were alleged in the libel, but it is unnecessary to consider any except the charge that the tug was negligent in towing with too long a hawser. On this ground alone she was inculpated by the District Judge. He says: “After much consideration and some doubt, it seems to tbe court that it was not prudent to carry tbe tow on so long a bawser, breaking a channel proportioned to the width of the tug, and probably little more than the width of the canal-boat, so that sheering on the hawser would bring the canal-boat with considerable violence" } ]

[ { "docid": "6429933", "title": "", "text": "SWAN, Circuit Judge (after stating the facts as above). The claimant of'the tugs took no appeal from the interlocutory decree in favor of the libelant; it seeks now, on the theory that this is a trial de novo, to raise the question of liability. Naturally no appeal was taken by the claimant from the final decree dismissing the libel, and no error has been assigned by the appellee to any part of the record. The libelant’s appeal, however, brings up the whole ease for a trial de novo; consequently this court may determine every issue raised by the pleadings, and, without regard to the interlocutory decree below, may direct such decree to be entered as is consistent with law. Irvine v. The Hesper, 122 U. S. 256, 266, 7 S. Ct. 1177, 30 L. Ed. 1175; Reid v. Fargo, 241 U. S. 544, 36 S. Ct. 712, 60 L. Ed. 1156; Standard Oil Co. v. So. Pac. Co., 268 U. S. 146, 155, 45 S. Ct. 465, 69 L. Ed. 890; Munson S. S. Line v. Miramar S. S. Co., 167 F. 960 (C. C. A. 2). The question of the tug’s liability is therefore before us. .What caused the barge to leak is not known; concededly no evidence was offered to connect it with faulty navigation by the tugs. Nor were they negligent in taking her out of the tow at a time when she was obviously sinking. They beached her at the best available place. The lower court held them responsible solely because they failed to anchor or otherwise make fast the barge after they had run her upon the mud flats. This holding presupposes that the duty to anchor, if an anchor is necessary to safe mooring, rests upon the tug rather than upon the bargee. This is by no means clear under the authorities. In The M. E. Luckenbach (D. C.) 200 F. 630, affirmed 214 F. 571 (C. C. A. 2), a barge in tow was east adrift to avoid collision with a schooner. It was held to be the bargee’s duty to anchor, and" }, { "docid": "9417840", "title": "", "text": "was loaded comparatively more heavily than either of the other barges and was lower in the water than they were. About 3 A. M. on January 29,- the Calvin began to go down by the starboard stem, having evidently sprung a leak, and the water apparently came in so fast that the power engine situated ■ aft was. not able to exhaust the intake of water¿forward, and the weather conditions were such, according to the barge captain, that he was unable to work the forward hand pumps. About 3:30 he put up a red light which I find was intended to be a signal to the tug for assistance. The tug, however, was not within sight of the barges and gave no assistance, the master of the tug stating as a witness that under the -circumstances although aware of the rising storm, he did not feel called upon to do anything to look out for the safety of the barges and furthermore he said he could not reasonably have gotten his tug away from the wharf by reason of being blocked by other vessels. Compare Md. Transp. Co. v. Dempsey, 279 F. 94 (C. C. A. 4). The crews on the three barges were apparently unable to do anything to stop the sinking of the Calvin which occurred at about 5 A. M. in about 40 feet of water whereby she became an actual total loss of barge and cargo. The tug did not return to the barges until about 9:45 A. M., and after they had drifted half a mile or more from their original anchorage. The particular tug, after reporting the loss of the Calvin by telephone to Baltimore, was assigned to other duty and subsequently the remaining barges in the flotilla were towed to Norfolk by another tug belonging to the Transportation Company. The testimony as to the seaworthiness of the Calvin, both of eye witnesses and experts, was conflicting. It is not disputed that she was an old wooden barge, about 26 years old. In August 1933 she was hauled out of the water at Norfolk" }, { "docid": "13491915", "title": "", "text": "of a contract merely for towage. The fact that the man put aboard by the builder did not remain to the end or that the owner did not choose to keep some one on the tow is immaterial.” 285 U.S. at page 201, 52 S.Ct. at page 349. The principles of law enunciated in White City are particularly apposite here. Whether the doctrine of res ipsa loquitur is compatible with the principle that there is no presumption of negligence in a towage case would only have to be decided in a proper res ipsa case. This, however, is not such a case. For even accepting the doctrine as advocated by Snare, all res ipsa would require here is that the tug explain or rebut. The uneontradicted testimony of the captain and mate, the description of the streaming operation and the different free-boards of the 110 and 112 are more than sufficient by way of explanation. Moreover, it would require that Snare show that the accident was one that could not occur in the absence of the tug’s negligence and that the barge was in good order when delivered. This it has failed to do. The foregoing discussion has demonstrated that the alleged hole could have resulted from a cause unconnected with any negligence of the tug. Turning to an examination of the condition of the barge when delivered, Snare has failed to show that the barge was in good order. One who offers a vessel for towing holds her out as “sufficiently staunch and strong to withstand the ordinary perils to be encountered on the voyage. If she be unseaworthy by reason of weakness, decay or leaks and such defects are not obvious to the master of the tug he will be absolved from responsibility where such unseaworthiness causes the damage complained of.” The Edmund L. Levy, 2d Cir., 1904, 128 F. 683, 684; Southgate v. Eastern Transp. Co., 4 Cir., 1927, 21 F.2d 47; A. S. Wikstrom, Inc. v. The Julia C. Moran, D.C.S.D.N.Y.1960, 190 F.Supp. 250, 251; The Rondout, D.C.E.D.N.Y.1944, 53 F.Supp. 736, 738; The Morning Star, D.C.S.D.N.Y.1926," }, { "docid": "13491916", "title": "", "text": "the tug’s negligence and that the barge was in good order when delivered. This it has failed to do. The foregoing discussion has demonstrated that the alleged hole could have resulted from a cause unconnected with any negligence of the tug. Turning to an examination of the condition of the barge when delivered, Snare has failed to show that the barge was in good order. One who offers a vessel for towing holds her out as “sufficiently staunch and strong to withstand the ordinary perils to be encountered on the voyage. If she be unseaworthy by reason of weakness, decay or leaks and such defects are not obvious to the master of the tug he will be absolved from responsibility where such unseaworthiness causes the damage complained of.” The Edmund L. Levy, 2d Cir., 1904, 128 F. 683, 684; Southgate v. Eastern Transp. Co., 4 Cir., 1927, 21 F.2d 47; A. S. Wikstrom, Inc. v. The Julia C. Moran, D.C.S.D.N.Y.1960, 190 F.Supp. 250, 251; The Rondout, D.C.E.D.N.Y.1944, 53 F.Supp. 736, 738; The Morning Star, D.C.S.D.N.Y.1926, 10 F.2d 538. Realizing that it had a duty to furnish a seaworthy barge, Snare attempts to rebut the presumption of unseaworthiness arising out of the circumstances of the sinking by urging the testimony of Wilson, the underwriter’s surveyor, the testimony of the captain and mate of the Julia and the testimony of Commander Madison. It is Snare’s contention that they inspected the tug and found her seaworthy. An examination of their testimony, however, shows that the conclusion Snare attempts to draw cannot be sustained. James Wilson, employed by Atlantic Mutual Insurance Company as a marine surveyor, surveyed the 110 on September 6, 1956. He looked over the outside of the barge, but did not go into the interior. Whether this was due to the fact that the bars had already been welded over the hatches is not ascertainable from the evidence. In any case, he accepted the statement of the Snare workmen as to conditions below decks. Wilson said he saw no hole anywhere along the outside of the vessel. But since he did" }, { "docid": "15660200", "title": "", "text": "lighter alongside, and in failing to take her astern on a hawser. 2. In proceeding out into the Sound un- ' dor unfavorable weather conditions. 3. In towing at excessive speed. 4. In failing to stop when meeting the swells of passing Sound steamers. 5. In continuing to tow the No. 6 with a dangerous list. 6. In failing to have and to use a siphon 5 when the list was noticeable. That the Dutton No. 6 suffered damage, as did also the cargo, is beyond question,' but that fact standing alone does not raise any presumption of fault. The Dauntless and the respondent were not insurers or common carriers. The duty the tug and respondent owed to the tow was to exercise such reasonable ■ care and maritime skill as prudent navigators employ for the performance of similar service. The burden of proving negligence rested upon the libelants. Stevens v. The White City, 285 U. S. 195, 52 S. Ct. 347, 76 L. Ed. 699; The Maurice R. (D. C.) 3 F. Supp. 86; see, also, The J. P. Donaldson, 167 U. S. 599, 17 S. Ct. 951, 42 L. Ed. 292; The L. P. Dayton, 120 U. S. 337, 7 S. Ct. 568, 30 L. Ed. 669. The Dauntless No. 7 had frequently towed the Dutton No. 6, both before and after the happening hereinafter described, with similar cargoes, and, so far as the record shows, without any change in the hatch covers. On all these other occasions the Dutton No. 6 was a good seaworthy boat. Just previous to this trip, inexperienced employees of the Dutton Lumber Corporation, Inc., installed two planks in the forward deck of the Dutton No. 6. These planks 'were 21 feet 2 inches in length, and, when examined after the boat turned over, there was no evidence or indication of beveling, no tool marks, and no evidence of oakum, pitch, or tar, or of there, ever having been caulking done. It is true that Miller, under whose supervision the work was done, said he did no caulking but saw men caulking, but" }, { "docid": "14299287", "title": "", "text": "MACK, Circuit Judge. Appeal by libelant, the barge owner, from a decree dismissing his libel, both as to the respondent charterer and the impleaded towing company, which under engagement with the charterer, had towed her from New York to Stamford, Conn. The coal barge was chartered December 5, 1917, under the usual demise charter with the captain’s services for an indefinite time for a trip to Stamford, Conn. She was loaded at Port Reading and delivered at New-town Creek. There she was taken in tow, on January 16, 1918, by the towing company’s tug. On January 18th she was towed to a safe place at Wilson’s Point, and remained there with other barges eight days, as Stamford Harbor was frozen up. On the 26th, after the tugs had broken a channel through, over 30 feet wide and half a mile long, they again took her in tow and landed her the same morning at Stamford. Then, at about 11a. m., the captain, without having examined her, left the barge. If he had inspected her before leaving, he would have discovered that two planks in her port bow, about even with the load water line, had been broken in passing through this channel. Due to his failure to discover this, and to take measures to avoid sinking, she sank at high tide during the night. The captain returned the following day. We concur in the view of the trial judge that it was “the master’s duty, a part of the husbandry of the boat,” to examine her, and that all of the damage, except the slight repairs due to the initial punch, was due to his negligence in failing to perform that duty. As to the initial damage, concededly the towing was carefully done, no negligence can be charged either against the tug owner or the charterer, unless it be negligence to tow with the utmost care or to permit the towing under all the then prevailing circumstances. This barge was demised in the winter time; the parties knew that it would be used when, in all probability, the ice conditions" }, { "docid": "14412474", "title": "", "text": "it became apparent that she was filling fast, with the result that the master altered his course, entered the Severn river with his tow and beached her off Annapolis. There she remained in a submerged condition for some six weeks, when libelant had her floated. No injuries to her hull -were apparent; she appeared to be tight and otherwise seaworthy. There is no proof that she was towed carelessly or at an immoderate speed. It appears that, both before and after this foundering, she was towed in a similar manner, under similar weather conditions, without any mishap. Libelant claims that the foundering was due to faulty navigation, for which the tug was entirely responsible; that this is a case of res ipsa loquitur. On behalf of the tug, full responsibility for proper navigation is admitted. The defense is made that this responsibility was fully met, but that the tow was delivered to it in an unseaworthy condition, which was the direct cause of the foundering, and that this could not have been prevented by those aboard the tug, after the houseboat’s perilous situation was first discovered. The law governing such a situation is very clear. We start with the proposition: First, that where the owner of a tug contracts to transport a tow, and to take entire charge of its navigation, the owner of the tow is responsible for its seaworthiness, and the owner of the tug for its safe navigation. The Lizzie M. Walker (C. C. A.) 3 F.(2d) 921 (Fourth Circuit). Second, that a tug is not an insurer; that the mere loss of the tow raises no presumption of fault against the tug; that it is only bound to bring to the performance of its duty, reasonable skill, and care and such consideration as the special eircumstances of the case demand; and that therefore the burden is upon the tow to show that the negligence of the tug caused the loss complained of. The Morning Star (D. C.) 10 F.(2d) 538, 1926 A. M. C. 132; Southgate v. Eastern Transportation Co. (C. C. A.) 21 F.(2d) 47;" }, { "docid": "3588408", "title": "", "text": "Co. v. Saltz, 273 U. S. 376, 47 S. Ct. 368, 71 L. Ed. 663; Standard Dredging Co. v. Kristiansen (C. C. A.) 67 F.(2d) 548; In re W. E. Hedger (C. C. A.) 59 F. (2d) 982; Alvah H. Boushell (C. C. A.) 38 F.(2d) 980; The El Sol (D. C.) 45 F.(2d) 852. While we think claimants are right that the barge should also have been sun-endered, we do not find it necessary to determine the effect of the failure to surrender it, nor whether it may still be surrendered, because of our view that on the merits the decree for claimants -was right. We address ourselves io those. The facts may be quite briefly stated, for though considerable testimony was taken, the issues are few and narrow, and the ease made was in small compass. On January 28, 1930; the Edgar R Coney left Sabine Bar with the barge “Pure Detenox” in tow, bound for Pensacola, Fla. At this .time the weather conditions were moderate. During- the afternoon and night they grew worse, with heavy rain squalls and shifting winds. The baige, however, steered all right, following in the wa,ke of the tug, and no signals were exchanged, indicating danger or trouble. The weather, while severe, was not unusual for- that time of the year. As the captain of the barge and some of the crew put it, “We have been in that kind of weather many times” and they wore not expecting or looking for any trouble. The night was very dark, but there were flashes of lightning which enabled them to see the tug from time to time. About 10 p. m. the crew on the barge noticed the lights on the Lug, which had been appearing and disappearing at intervals, finally disappear altogether. Shortly after this cries for help were heard from men in the water near by. Due to the condition of the weather, the barge being deeply loaded, and seas breaking over her decks, with a stiff wind and heavy rain at the time, they were unable to launch the life boats" }, { "docid": "9417841", "title": "", "text": "wharf by reason of being blocked by other vessels. Compare Md. Transp. Co. v. Dempsey, 279 F. 94 (C. C. A. 4). The crews on the three barges were apparently unable to do anything to stop the sinking of the Calvin which occurred at about 5 A. M. in about 40 feet of water whereby she became an actual total loss of barge and cargo. The tug did not return to the barges until about 9:45 A. M., and after they had drifted half a mile or more from their original anchorage. The particular tug, after reporting the loss of the Calvin by telephone to Baltimore, was assigned to other duty and subsequently the remaining barges in the flotilla were towed to Norfolk by another tug belonging to the Transportation Company. The testimony as to the seaworthiness of the Calvin, both of eye witnesses and experts, was conflicting. It is not disputed that she was an old wooden barge, about 26 years old. In August 1933 she was hauled out of the water at Norfolk and repairs at a cost of about $200 were made to her hull. Extensive repairs had been made to her about a year before in Baltimore. In December 1933 she had reported certain damage to a cargo she was carrying, while at Alexandria, Virginia. This damage was apparently caused by improper stowing or loading in the aftermost hold whereby water in the bilge ran up over the skin of the barge and damaged the cargo there stowed. She was not hauled out of the water for inspection after this incident, and it is contended by the libellant that such an inspection should have been made, to see if any of her under water planks had been strained or other damage done. She was also given some further repairs, including new pumps, but not under water inspection, prior to the loss. There was some testimony that while she was being loaded her engines were running for a considerable time, indicating, as the libellant contends, that she was then leaking- more than normally. This testimony is of" }, { "docid": "2458950", "title": "", "text": "encountered a slightly higher part of the shoal rising some 2 to 2% feet up against which the bow struck, in consequence of which blow the planks of the bow were crushed in, and up over which the .bow of the barge was dragged, so as to give it the uplifted appearance it had after the barge finally sank. The sinking, therefore, was due, not to the fact that the barge was towed out of the proper channel, or over a place which at its normal draught would not have been wholly and entirely safe for it to be towed at that stage of the tide, but was due to the greater and abnormal draught caused by an unsea worthy condition;'1 that is, a leakage, and for which the towing company respondents would not be responsible.” We think on these Tacts the libel should not have been dismissed. The proofs show that the seo.w when fully loaded drew 1.7 feet, which therefore was not an abnormal draft. There was no representation as to her draft made to the railway company, and it knew that her actual draft was liable to be increased on the trip, because she was leaking. The libelant was entitled to have his scow safely towed at any draft she could stand, whether due to cargo or to a leak. Of course, if she had foundered, as the answer alleges, because of the leak, the tug would not be responsible; but it is clear that she sank as the result of striking on the rock. When a tug strands a tow on a well-known and constantly frequented course, she is bound to explain the accident. The Ellen McGovern (D. C.) 27 Fed. 868. If the tow strikes a rock in the channel, as the District Judge found in this case, the claimant is bound to show that the rock was an unknown obstruction. The Mary N. Hogan (D. C.) 30 Fed. 927; The Pierrepont (D. C.) 42 Fed. 687. As it has failed to do this, the decree is reversed, and the court below directed to enter" }, { "docid": "6429936", "title": "", "text": "C. A. 2). By analogy, it would seem that ordinarily it is the bargee’s duty to see that his barge does not move from the place she was beached, -and to drop an anchor if that be necessary. If the anchor was too heavy for him to handle alone, it was a fault of the owner for insufficient manning. Moreover, the tug doubtless would have helped, had the bargee suggested that help was needed. This he did not do, but relied entirely upon the tug to determine what was necessary. However, we are not required on the present record to decide upon whom is the duty to anchor a beached tow, when due care requires the dropping of an anchor, because, for reasons now to be stated, we think no one was negligent in failing to anchor, barge No. 113. This barge was built entirely of reinforced concrete. She had a length of 150 feet, a beam of 21 feet, and was 12 feet deep, and, when.filled with water, she certainly would, not float. The bargee first discovered that she was leaking by being rolled from his bunk, while asleep, into water on the cabin floor. She had developed a decided list, so that, according to one witness, the starboard side had about 18 inches of freeboard while the port side had 4 or 5 feet. As she had no cargo, this meant that she had already-taken in much water. Indeed, the captain of the brick scow on her starboard side was so convinced that she would promptly sink that he threatened to cut the lines if she were not gotten out of the tow immediately. -The captain of the Townsend, when he pulled her out of the tow, thought that she was half full of water and might sink before he could reach the beach. She was run onto the mud flats until she was hard aground, and was left there in the belief that she would never float again, a belief shared by her bargee, as well as by the captain of the tug, and they were the" }, { "docid": "6429935", "title": "", "text": "that, if his failure to do so caused the barge to strand, the tug was not responsible, even though it had been negligent in bringing about the danger which necessitated casting its tow adrift. In that ease, it is true, the tug signaled to the bargee to drop anchor, while here the Townsend’s captain gave no instructions to the bargee. In The Panther, 5 F.(2d) 64 (C. C. A. 2), a barge was cast adrift while the tug was landing another boat in its tow. The drifting barge came into a collision, which might have been avoided, had the barge had an anchor and dropped it. The tug was exonerated from liability. Ordinarily, after the tug has brought its tow to a safe berth it is the duty of the bargee to see that his mooring is proper, though, if this requires more nautical skill than a boatman can be expected to have, the tug may be held at fault for not seeing that a better fast was made. The Ganoga, 257 F. 720 (C. C. A. 2). By analogy, it would seem that ordinarily it is the bargee’s duty to see that his barge does not move from the place she was beached, -and to drop an anchor if that be necessary. If the anchor was too heavy for him to handle alone, it was a fault of the owner for insufficient manning. Moreover, the tug doubtless would have helped, had the bargee suggested that help was needed. This he did not do, but relied entirely upon the tug to determine what was necessary. However, we are not required on the present record to decide upon whom is the duty to anchor a beached tow, when due care requires the dropping of an anchor, because, for reasons now to be stated, we think no one was negligent in failing to anchor, barge No. 113. This barge was built entirely of reinforced concrete. She had a length of 150 feet, a beam of 21 feet, and was 12 feet deep, and, when.filled with water, she certainly would, not float. The" }, { "docid": "13898060", "title": "", "text": "shifting of her load and the effect of water running in over the side capsized her almost immediately, for in so doing she turned bottom up; but, while turning, her starboard rail went high enough out of water to land up over the rail on the deck of the Uller, and the starboard rail- was evidently torn off as the boat slid down into the water. One of the witnesses testifies that she rocked both ways; but, if so, it does not change the testimony as to the cause of the occurrence, and all of the other witnesses agree that, when the boat started to turn to port, she continued until she went clear over. Much testimon}’' has been introduced as to whether a boat of this age could have become unseaworthy through deterioration of the caulking in her seams above the water line. The testimony is all to the effect that the Adah had not been leaking up to a very short time before the accident. Her captain testifies that he tried with a pump in the stern port corner a very short time before the accident and could get no water. If leaking occurred, it must have been because of opening of the seams above the ordinary low-water line, under the influence of the heavy deck load and the list to’ port. A seaworthy boat is intended to undergo such loads and lists, and if the accident occurred from ordinary leaking through open seams, the Adah would be responsible herself for the results of the accident. U. S. Metals Refining Co. v. Jacobus, 205 Fed. 896, 124 C. C. A. 209; The Edwin I. Morrison, 153 U. S. 199, 14 Sup. Ct. 823, 38 L. Ed. 688; The Caledonia, 157 U. S. 124, 15 Sup. Ct. 537, 39 L. Ed. 644. The question of right to limit liability would then arise. The Loyal, 204 Fed. 930,123 C. C. A. 252; Benner Line v. Pendleton, 217 Fed. 497, 133 C. C. A. 349. If this defense to the present action had been insisted Upon in limine, the issues as" }, { "docid": "4178724", "title": "", "text": "694, affirming 284 F.Supp. 297, 1968 A.M.C. 2776. The mutual fault rule was also applied when the tug and its tow collided in Puget Sound Tug & Barge Co. v. S. S. Lindenwood Victory, W.D.Wash.1969, 305 F.Supp. 570, 1969 A.M.C. 1962. But the doctrine of mutual fault has not been applied in those towage cases where the tug clearly has the final opportunity, as well as the duty, to avert the damage, sometimes called the last clear chance. In Henry Du Bois Sons Co. v. Pennsylvania R. Co., 2 Cir. 1931, 47 F.2d 172, the court held a tug liable for the sinking of its tow when the tug could have prevented the casualty by prompt action. It said: “It is true that there is no evidence that the Margaret G was seaworthy when taken in tow or to show what caused the leaking or just when it began. If it be assumed for the argument, however,' that she was unseaworthy when the voyage began, the tug is, nevertheless, liable for any loss attributable solely to its failure to exercise due care to save the boat and cargo from that damage which it could have prevented by taking reasonable and prudent action to protect the boat and cargo from sinking from whatever cause. McCormick v. Jarrett (D.C.) 37 F. 380. See The M.J. Cummings (D.C.) 18 F. 178; The Jonty Jenks (D.C.) 54 F. 1021. Nor was it shown that the captain of the Margaret G could have obtained assistance after being moored and abandoned or failed to do all within his power to prevent sinking. On the evidence, the [tug] Mercer is responsible for all the damage caused solely by the sinking of the coal boat.” 47 F.2d at 174. This rule has since been consistently applied in the Second Circuit. Then Senior Circuit Judge Learned Hand wrote, in Chemical Transporter, Inc. v. M. Turecamo, Inc., 2 Cir. 1961, 290 F.2d 496, his last opinion: “It is indeed true that the barge was at fault as well as the tug, but the tug’s fault occurred after the consequence of" }, { "docid": "13491905", "title": "", "text": "the sea was slight. The barges followed well behind the Julia and appeared to be all right. At 1:40 a. m. on September 8th, the Julia’s mate, who was on watch at the time, observed the riding lights of the barges. The barges were in the same condition and position as they had been prior to that time. At 1:50 a. m., when he looked back again, the 110 had capsized and sunk. In a situation such as this, the applicable principles of law are well settled. “In a contract of towage, the owner of the tow is responsible for the seaworthiness of his vessel and the owner of the tug for its safe navigation. The Radnor, D.C.Md., 21 F.2d 982; The Lizzie M. Walker, 4 Cir., 3 F.2d 921.” Curtis Bay Towing Co. of Va. v. Southern Lighterage Corp., 4 Cir., 1952, 200 F.2d 33, 34; United States Fire Ins. Co. v. Gulf States Marine & Mining Co., 5 Cir., 1959, 262 F.2d 565; The Mariner, D.C.D.Mass. 1940, 35 F.Supp. 802, 805. “The mere fact that a tow receives injury does not render the tug liable. Negligence must be affirmatively shown and the burden of proving negligence rests upon those seeking to establish liability therefor. The tug is not liable as an insurer or as a common carrier, but owes to the tow the duty to exercise such reasonable care and maritime skill as prudent navigators employ in the performance of similar serv ices. Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699; ‘The Margaret,’ 94 U.S. 494, 24 L.Ed. 146; The Lapwing, 5 Cir., 150 F.2d 214; The Clarence L. Blakeslee, 2 Cir., 243 F. 365; The Atlantic City, 4 Cir., 241 F. 62.” Stall & McDermott v. The Southern Cross, 5 Cir., 1952, 196 F.2d 309, 311; Southgate v. Eastern Transp. Co., 4 Cir., 1927, 21 F.2d 47, 49; Shamrock Towing Co. v. Schiavone-Bonomo Corp., D.C.S.D. N.Y.1959, 173 F.Supp. 39, 44. “[A] tow is presumed to be unseaworthy when she sinks under normal conditions, and in the absence of proof that she" }, { "docid": "14412479", "title": "", "text": "and highly responsible witnesses, is to the effect that, when the top sides of a boat of this type are not brought into contact with water over a period as great as 14 months, it is virtually inevitable that the planking will contract, causing her seams to open. As was testified by Mr. Addison, president of the Spedden Shipbuilding Company, even if the bow wave, created by the towing of the houseboat, would normally reach only the first seam in her bow above her water line, if that seam were open, enough water would soon enter and cause her to sink by the head, whereby other open seams would be submerged, and it would only be a matter of a short time before she would founder. This explanation of the cause of the foundering, which the court believes to be the correct one, is really corroborated, rather'than contradicted, by the testimony that, although the houseboat was allowed to remain submerged at Annapolis for some 6 weeks, when she was floated and entirely pumped out she remained tight and staunch. The wooden hull, after such long submergence, would naturally swell to a large extent, and it would take considerable exposure again to warm weather and dryness before the seams would reopen. The only question remaining to be considered is: Could those on board the tug, by the exercise of reasonable care and diligence, have prevented, or minimized the filling of the houseboat through these leaky seams? The court finds no evidence in the ease sufficient to support the claim that they could. Assuming that the tewing had been immediately stopped at the first intimation of trouble, and •that the tug had forthwith been placed alongside the houseboat, what could have been done? There is no evidence .that those in charge of the tug knew or should have known, in the fog, of the peril of the tow until she had taken in a great deal of water. Possibly even then she might have been kept from further submergence by the usó óf a pump on the tug, but there is no" }, { "docid": "12175666", "title": "", "text": "the captain is certainly in error, because I accept as true the testimony of the master of the tug that, after giving some signals and sending his deckhand aboard the barge, he induced the captain of the barge to measure the water in the barge and found that there was 4% feet, and that this occurred before the black buoy outside of the green buoy was reached. There is no evidence to sustain the claim of the libelant that the captain of the Senator Rice cut short any buoys, causing the Lake George to bring up and strike upon a well-known reef, and even if the testimony of the captain of the Lake George be accepted as true, it does not seem possible that she could, even if she struck such reef, be pulled, dragged, and forced over the reef, and receive the injuries which appeared on the bottom of the Lake George, when seen by the diver and when drawn out on the dry dock, and the captain on the barge feel only a jolt, and those on the tug with the barge alongside feel nothing. It was the duty of the libelant to prove negligence, and the mere fact that the barge sank while itf custody of the tug does not establish libelant’s case. The Greenwich (C. C. A.) 270 F. 42. The master of the .tug says that the barge did not strike anything before he discovered the water on her deck, and he is supported by the deckhand and the engineer, both of whom testified that they felt no shock until the Lake George was beached; therefore, no cause for the leaking having been shown while she was in tow of the tug before being beached, the presumption is that the barge was unseaworthy, and the libelant has failed to rebut that presumption. Oregon Round Lumber Co. v. Portland & Asiatic S. S. Co. (D. C.) 162 F. 912; Bartley v. Borough Development Co. (D. C.) 214 F. 296. No fault is alleged in the libel on the part of the master of the tug in" }, { "docid": "4178717", "title": "", "text": "construction and cargo, including fuel, pipe and gear. From the testimony, I conclude that there was mud or silt, together with a substantial amount of water ballast in its tanks, when the barge left Cox Bay. The barge does not seem to have been inherently unstable; it had made similar voyages without mishap many times before. But there was evidence that, on this trip the barge was difficult to handle from the time she was taken in tow at Cox Bay. Both of the captains of the towing tugs characterized her behavior as “cranky.” Indeed, the captain of the MADELINE said he had followed the CAPT. O’BRIEN, and noticed that the barge listed to one side and then another. “She’d ride 15 to 45 minutes perfect; then she’d list again.” He discussed this with the captain of the CAPT. O’BRIEN and told him, “I have towed the rig before and she was cranky.” These manifestations began “right after we got cf. location.” There is evidence that silt or mud might have accumulated in the bilges, and the barge’s crew added water ballast to correct a list just before this trip. The fact that the barge was cranky indicates, according to the expert witnesses, that its stability was endangered. The addition of water ballast in a vessel of this type is undesirable. It creates a free surface condition hazardous to stability. It lowers the freeboard and creates the possibility that one edge of the deck may go under water. When this happens, the barge’s instability is dramatically increased. That she had been in fact cranky on prior voyages merely indicates that she may have been improperly loaded or ballasted on those occasions as well. There can be no doubt that the only course available was through shallow waters. The fact that the barge went aground is no evidence of improper navigation. And only speculation can support the hypothesis that the barge was damaged at all by its grounding or, if damage ensued, that this was of a nature to cause her to capsize. A leak in the hull might have caused" }, { "docid": "6429934", "title": "", "text": "v. Miramar S. S. Co., 167 F. 960 (C. C. A. 2). The question of the tug’s liability is therefore before us. .What caused the barge to leak is not known; concededly no evidence was offered to connect it with faulty navigation by the tugs. Nor were they negligent in taking her out of the tow at a time when she was obviously sinking. They beached her at the best available place. The lower court held them responsible solely because they failed to anchor or otherwise make fast the barge after they had run her upon the mud flats. This holding presupposes that the duty to anchor, if an anchor is necessary to safe mooring, rests upon the tug rather than upon the bargee. This is by no means clear under the authorities. In The M. E. Luckenbach (D. C.) 200 F. 630, affirmed 214 F. 571 (C. C. A. 2), a barge in tow was east adrift to avoid collision with a schooner. It was held to be the bargee’s duty to anchor, and that, if his failure to do so caused the barge to strand, the tug was not responsible, even though it had been negligent in bringing about the danger which necessitated casting its tow adrift. In that ease, it is true, the tug signaled to the bargee to drop anchor, while here the Townsend’s captain gave no instructions to the bargee. In The Panther, 5 F.(2d) 64 (C. C. A. 2), a barge was cast adrift while the tug was landing another boat in its tow. The drifting barge came into a collision, which might have been avoided, had the barge had an anchor and dropped it. The tug was exonerated from liability. Ordinarily, after the tug has brought its tow to a safe berth it is the duty of the bargee to see that his mooring is proper, though, if this requires more nautical skill than a boatman can be expected to have, the tug may be held at fault for not seeing that a better fast was made. The Ganoga, 257 F. 720 (C." }, { "docid": "17062004", "title": "", "text": "after the dangerous condition of her tow was observed is not attacked. Sternberg Dredging Co. v. Moran Towing & Transp. Co., 2 Cir., 1952, 196 F.2d 1002, rehearing denied 2 Cir., 200 F.2d 603, and Curtis Bay Towing Co. of Virginia v. Southern Lighterage Corp., 4 Cir., 1952, 200 F. 2d 33, relied upon by libelant, are, therefore, inapposite. The query then, is whether the crew of the Julia C. Moran was negligent in failing to observe the decline in the Lighter’s freeboard at an earlier time. Counsel have not cited, and the court in its own study has not found, any case that imposes a greater obligation upon a tug other than that she “ * * * keep a reasonably close observation of her tow.” The Mariner, D.C.Mass.1940, 35 F.Supp. 802, 805. The master of a tug is entitled to assume that a vessel offered for tow-age will be “ * * * sufficiently staunch and strong to withstand the ordinary perils to be encountered on the voyage.” The Edmund L. Levy, 2 Cir., 1904, 128 F. 683, 684; Southgate v. Eastern Transp. Co., 4 Cir., 1927, 21 F.2d 47. The suggestion that Captain Bergsted’s inspection of the vessel’ relieved the Lighter from her warranty of seaworthiness is without merit. In the absence of any reason to expect a perilous condition to develop, constant surveillance of the tow is not mandated. Libelant urges that an inference of negligence may properly be drawn from the fact that when first noticed, the freeboard had declined from between 2 and 3 feet to approximately 1% feet. There is no evidence whatever as to the Lighter’s condition except that when taken in tow her freeboard was between 2 and 3 feet and that at 4:45 the master observed the decline. Nor was there any evidence from which an inference can be drawn as to the reason for, and rate of, said diminution. The surveyor who inspected the tow after the sinking, on behalf of libelant, was not called as a witness, and we do not, therefore, have the benefit of his findings" } ]

[ { "docid": "22664224", "title": "", "text": "prescribed by the Arbitration Act. E The Hospital argues that the Colorado River test is somehow inapplicable because in this case the District Court merely stayed the federal litigation rather than dismissing the suit outright, as in Colorado River. It contends that Mercury remains free to seek to reopen the federal suit on a showing that the state suit has failed to adjudicate its rights, and that a stay is less onerous than a dismissal. We have already rejected this distinction, for purposes of this case, in discussing appellate jurisdiction. Supra, at 12-13. We reject it in this context for the same reasons. We have no occasion in this case to decide whether a dismissal or a stay should ordinarily be the preferred course of action when a district court properly finds that Colorado River counsels in favor of deferring to a parallel state-court suit. We can say, however, that a stay is as much a refusal to exercise federal jurisdiction as a dismissal. When a district court decides to dismiss or stay under Colorado River, it presumably concludes that the parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties. If there is any substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or dismissal at all. See Part IV-D, supra; McNeese v. Board of Education, 373 U. S. 668, 674-676 (1963). Thus, the decision to invoke Colorado River necessarily contemplates that the federal court will have nothing further to do in resolving any substantive part of the case, whether it stays or dismisses. See 17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4247, pp. 517-519 (1978). Moreover, assuming that for some unexpected reason the state forum does turn out to be inadequate in some respect, the Hospital’s argument fails to make out any genuine difference between a stay and a dismissal. It is true that Mercury could seek to return to federal court if it proved necessary; but that would be equally true if the District" } ]

[ { "docid": "17387022", "title": "", "text": "staying this case. (Defs.’ Br. at 19-21). Plaintiff argues that the state and federal proceedings are not parallel because the state court proceeding cannot afford complete relief to Plaintiff, and that the Colorado River factors actually weigh heavily in favor of denying a stay. (Pl.’s Resp. at 18-19). “In Colorado River, the Supreme Court noted that, despite the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them, considerations of judicial economy and federal-state comity may justify abstention in situations involving the contemporaneous exercise of jurisdiction by state and federal courts.” Romine v. Compuserve Corp., 160 F.3d 337, 339 (6th Cir.1998). “The pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction.” Doe v. Ann Arbor Public Schools, 2012 WL 1110015 (E.D.Mich. April 3, 2012) (quoting Colorado River, 424 U.S. at 817, 96 S.Ct. 1236). There are, however, situations in which a federal court may defer to a parallel concurrent state court proceeding, when the decision to do so is “based on wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.” Id., citing Colorado River, 424 U.S. at 817, 96 S.Ct. 1236. “When a district court decides to dismiss or stay under Colorado River, it presumably concludes that the parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties. If there is any substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or dismissal at all.” Moses H. Cone Memorial Hosp. v. Mercury Const Co., 460 U.S. 1, 28, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). A court should abstain only “in extraordinary and narrow circumstances.” Id. at 813, 96 S.Ct. 1236. Abstention from the exercise of federal jurisdiction is the exception, not the rule. Crown Equip. Corp. v. Supplies & Servs., Inc., 181 F.3d 100 (6th Cir.1999), citing Moses H. Cone, 460 U.S. at 14, 103 S.Ct. 927; see also Colorado River, 424 U.S. at 813, 96 S.Ct. 1236." }, { "docid": "12296410", "title": "", "text": "be dismissed. IV The district court relied upon Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), in staying consideration of Zemsky’s remaining Section 1983 claims against the municipal defendants. In Colorado River, the Supreme Court recognized that, while “the rule is that ‘the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction,’ ” id. at 817, 96 S.Ct. at 1246 (quoting McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 504, 54 L.Ed. 762 (1910)), “exceptional” circumstances may on occasion “permitf] the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration.” Id. at 818, 96 S.Ct. at 1246. See also Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 14-16, 103 S.Ct. 927, 936-37, 74 L.Ed.2d 765 (1983). We have previously noted that Colorado River and Cone identify six factors to be considered in assessing whether such exceptional circumstances exist as to warrant a stay or dismissal of a federal action in favor of a concurrent state action: the assumption by either [the federal or the state] court of jurisdiction over any res or property, the inconvenience of the federal forum, the avoidance of piecemeal litigation, ... the order in which jurisdiction was obtained[,] ... whether state or federal law supplies the rule of decision, and whether the state court proceeding will adequately protect the rights of the party seeking to invoke federal jurisdiction. Bethlehem Contracting Co. v. Lehrer/McGovern Inc., 800 F.2d 325, 327 (2d Cir.1986). We have also taken note of the Court’s admonition that the decision whether to exercise jurisdiction in such circumstances “does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.” Id. (quoting Cone, 460 U.S. at 16, 103 S.Ct. at 937) (emphasis added). Three of the six factors set forth in" }, { "docid": "21862816", "title": "", "text": "not applicable here. The Court has also articulated a narrow fourth category based on “considerations of ‘wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.’ ” Id. at 817, 96 S.Ct. at 1246, (quoting Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952)). In explaining this standard, the Court observed that the pendency of a state proceeding is generally “ ‘no bar to proceedings concerning the same matter in the Federal Court’ ” and emphasized the “unflagging obligation” of a federal court to exercise its jurisdiction. Id. 424 U.S. at 817, 96 S.Ct. at 1246 (quoting McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 505, 54 L.Ed. 762 (1910)). Nevertheless, “exceptional” circumstances permit the “dismissal of a federal suit due to the presence of a concurrent state proceeding.” Id. 424 U.S. at 818. The Colorado River principles were reaffirmed in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), where the Court stated that “the task is to ascertain whether there exist ‘exceptional’ circumstances, [and] the ‘clearest of justifications’ ... to justify the surrender of [federal] jurisdiction.” Id. at 25, 103 S.Ct. at 942. See also Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 103 S.Ct. 3201, 77 L.Ed.2d 837 (1983). A number of factors are to be considered in this analysis, including convenience of the forum, avoidance of piecemeal litigation, and sequence in which jurisdiction was obtained. 460 U.S. at 15-29, 103 S.Ct. at 937-943. “[T]he presence of federal-law issues must always be a major consideration weighing against surrender.” Id. at 26, 103 S.Ct. at 942. In the case at hand, no parallel action is presently pending in the state court. The personal injury suit brought there was dismissed, presumably on agreement of the parties. Thus, the relief plaintiffs request from the federal court will in no way affect the state court’s disposition of its case which has long been closed. In short, the risks associated with piecemeal or" }, { "docid": "21585556", "title": "", "text": "in Colorado River because the litigation there involved a federal statute under which Congress had explicitly recognized the availability of state systems for the adjudication of water rights and had expressed a strong policy favoring resolution of those rights in a single, comprehensive forum. See id. at 819-20, 96 S.Ct. at 1247-48. No such policy is implicated in the case at bar, and the mere desire to resolve all issues involving related facts in one court does not justify depriving Hoai of his federal forum. As the Supreme Court has made clear, “ ‘the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal Court having jurisdiction.” Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246 (quoting McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 505, 54 L.Ed. 762 (1910)). In fact, in light of the Superior Court judge’s desire to separate Hoai’s federal claims against Sunoco from the non-federal dispute between Hoai and Yo, it is questionable whether judicial economy would even be served by the stay. Consequently, we find that the principles of Colorado River cannot support the stay in this case. Y. Conclusion There is no indication that “vital state interests are involved” in this case, Middle-sex, 457 U.S. at 432, 102 S.Ct. at 2521, justifying a stay or dismissal pursuant to the Younger!Pennzoil doctrine of equitable restraint. Nor has Sunoco demonstrated that “exceptional circumstances” justify a stay under the Colorado River/Moses H. Cone doctrine. Accordingly, the judgment of the District Court is reversed, and the case is remanded for a trial on the merits of the appellant’s suit in federal court. REVERSED. . On August 26, 1988, after the District Court stayed Hoai’s federal action against Sunoco, Hoai filed a third-party claim against Sunoco in the Superior Court action. . In making this point in Colorado River, the Court was referring to all forms of “abstention,” including the Pullman doctrine, see Railroad Comm’n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), covering cases in which a “ ‘federal" }, { "docid": "23218628", "title": "", "text": "at 762, “[Wjhere a state statute is unambiguous the court must perform its adjudicative duty and has no right to abstain merely because a state court decision might render a federal adjudication unnecessary.” For these reasons, we agree with the district court that the Pullman doctrine is not applicable to the case plaintiffs have brought. Colorado River Abstention Defendants next claim that abstention is appropriate under Colorado River due to the pendency of two actions in state court (MMIA v. Superintendent, No. 17505/86, N.Y.App.Div. 1st Dep’t and MMIA v. Cuomo, No. 17380/86, N.Y.App. Div. 1st Dep’t), which involve some of the parties and subject matter which are present in this ease. The Colorado River doctrine is a prudential one. The mere fact of concurrent state and federal proceedings “does not, without more, warrant staying exercise of federal jurisdiction.” Colorado River, 424 U.S. at 816, 96 S.Ct. at 1245. In fact, “the penden-cy of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction. ...” Id. at 817, 96 S.Ct. at 1246 (emphasis added) (quoting McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 505, 54 L.Ed. 762 (1910)). Rather, “[o]nly the clearest of justifications will warrant dismissal.” Id. at 819, 96 S.Ct. at 1247. The Supreme Court has identified six factors that should be considered in determining whether “exceptional circumstances” justifying abstention under the Colorado River doctrine are present in a given case. Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246. These are: (1) the convenience or inconvenience of the forum; (2) whether piecemeal litigation can be avoided; (3) the order in which jurisdiction was obtained; (4) the source of law for decision; (5) whether the state court can adequately protect the rights of the party seeking federal jurisdiction, and (6) the court first as serting jurisdiction over property in an in rem action. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 19-27, 103 S.Ct. 927, 938-48, 74 L.Ed.2d 765 (1983); Colorado River, 424 U.S. at 818, 96 S.Ct. at 1247. In" }, { "docid": "23218629", "title": "", "text": "Id. at 817, 96 S.Ct. at 1246 (emphasis added) (quoting McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 505, 54 L.Ed. 762 (1910)). Rather, “[o]nly the clearest of justifications will warrant dismissal.” Id. at 819, 96 S.Ct. at 1247. The Supreme Court has identified six factors that should be considered in determining whether “exceptional circumstances” justifying abstention under the Colorado River doctrine are present in a given case. Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246. These are: (1) the convenience or inconvenience of the forum; (2) whether piecemeal litigation can be avoided; (3) the order in which jurisdiction was obtained; (4) the source of law for decision; (5) whether the state court can adequately protect the rights of the party seeking federal jurisdiction, and (6) the court first as serting jurisdiction over property in an in rem action. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 19-27, 103 S.Ct. 927, 938-48, 74 L.Ed.2d 765 (1983); Colorado River, 424 U.S. at 818, 96 S.Ct. at 1247. In Cone, the court also noted that “the presence of federal-law issues must always be a major consideration weighing against surrender [of federal jurisdiction].” 460 U.S. at 26, 103 S.Ct. at 942. Under the Colorado River doctrine, the nature of the inquiry is not whether there are reasons to exercise federal jurisdiction, but rather whether exceptional circumstances exist which justify dismissal in deference to a pending state court proceeding. Id. at 25-26, 103 S.Ct. at 941-42. Defendants claim that exceptional circumstances do exist in this case. Defendants concede that the factors of jurisdiction over property in an in rem action and convenience of the forum are not relevant here. They argue, however, that the relative progress of this and the state court cases weighs in favor of dismissal because the state proceedings were filed first and are already on appeal on the merits, while the federal action has not yet proceeded to discovery. Defendants also contend that the “source of law” factor favors abstention since the state law claims cannot be adjudicated in federal court, but" }, { "docid": "7073757", "title": "", "text": "are concurrent state proceedings involving the same matter as in the federal district court. Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246. The Supreme Court has stressed, however, that the Colorado River exception to “the virtually unflagging obligation of the federal courts to exercise the. jurisdiction given them” is a narrow one. Id.; see also Moses H. Cone, 460 U.S. at 17, 103 S.Ct. at 937. Only exceptional circumstances justify such a stay, and whether these circumstances exist is determined by weighing a complex of factors. Moses H. Cone, 460 U.S. at 23-26, 103 S.Ct. at 941-42. The Colorado River Court enumerated several relevant factors for deciding whether a stay is appropriate, which later cases have expanded upon. See, e.g., 10235 Washington Street Corp. v. Lusardi, 976 F.2d 587, 588 (9th Cir.1992). Although the district court considered a number of these factors, it ignored a significant countervailing consideration that we find dispositive. Under the rules governing the Colorado River doctrine, the existence of a substantial doubt as to whether the state proceedings will resolve the federal action precludes the granting of a stay. As the Supreme Court stated in Moses H. Cone, When a district court decides to dismiss or stay under Colorado River, it presumably concludes that the parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties. If there is any substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or dismissal at all..'.. Thus, the decision to invoke Colorado River necessarily contemplates that the federal court will have nothing further to do in resolving any substantive part of the case, whether it stays or dismisses. 460 U.S. at 28, 103 S.Ct. at 943 (emphasis added). The Court reiterated its concern for the prompt and final resolution of all disputed issues in its most recent discussion of the Colorado River doctrine, declaring that a district court may enter- a Colorado River stay order only if it has “full confidence” that the parallel state proceeding will end the litigation." }, { "docid": "21585554", "title": "", "text": "supra. We find, however, that the Colorado River doctrine furnishes no independent ground justifying the District Court’s stay in this case. Indeed, the District Court did not even rely on Colorado River in issuing its stay. In Colorado River, the Supreme Court found that dismissal of an action in federal court was appropriate because of “considerations of ‘[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.’ ” 424 U.S. at 817, 96 S.Ct. at 1246 (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952)). This concern for “wise judicial administration” arguably encompasses the District Court’s apparent concern over the complications that might be caused by parallel federal and Superior Court proceedings in this case. However, the Supreme Court has clearly instructed that Colorado River may not be invoked as a means of getting rid of cases that properly belong in federal court, and that “the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention.” Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246; accord Moses H. Cone, 460 U.S. at 15, 103 S.Ct. at 936. Rather, Colorado River created a narrow exception to the exercise of federal jurisdiction, and only truly “exceptional” circumstances will justify a stay or dismissal on grounds of judicial economy. Colorado River, 424 U.S. at 818, 96 S.Ct. at 1247; Moses H. Cone, 460 U.S. at 15, 103 S.Ct. at 936; see also Gulfstream Aerospace Corp. v. Mayacamas Corp., — U.S.-, 108 S.Ct. 1133, 1144, 99 L.Ed.2d 296 (1988). In the instant case, however, the District Court did not purport to find any such circumstances, exceptional or otherwise, to justify the stay. It is arguably possible to rely on Colorado River insofar as the Court there cited the avoidance of piecemeal litigation as a factor that might favor a stay. See 424 U.S. at 819, 96 S.Ct. at 1247. That factor assumed importance" }, { "docid": "17387023", "title": "", "text": "is “based on wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.” Id., citing Colorado River, 424 U.S. at 817, 96 S.Ct. 1236. “When a district court decides to dismiss or stay under Colorado River, it presumably concludes that the parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties. If there is any substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or dismissal at all.” Moses H. Cone Memorial Hosp. v. Mercury Const Co., 460 U.S. 1, 28, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). A court should abstain only “in extraordinary and narrow circumstances.” Id. at 813, 96 S.Ct. 1236. Abstention from the exercise of federal jurisdiction is the exception, not the rule. Crown Equip. Corp. v. Supplies & Servs., Inc., 181 F.3d 100 (6th Cir.1999), citing Moses H. Cone, 460 U.S. at 14, 103 S.Ct. 927; see also Colorado River, 424 U.S. at 813, 96 S.Ct. 1236. a) Are The State Court And Federal Court Proceedings Parallel? For the first step in determining whether a Colorado River stay is appropriate, this Court must find that the concurrent state and federal actions are parallel. See Crawley v. Hamilton County Comm’rs, 744 F.2d 28 (6th Cir.1984). “[E]xact parallelism is not required; [i]t is enough if the two proceedings are substantially similar.” Romine, 160 F.3d at 340 (citations omitted). Two cases are substantially similar “where (1) the parties are substantially similar, and (2) [Plaintiffs] claims against [Defendants] are predicated on the same allegations as to the same material facts.... ” Ann Arbor Public Schools, 2012 WL 1110015 at *3, citing Romine at 340. The parties in both proceedings need not be identical, however. See Heitmanis, 899 F.2d at 528. Rather, “[p]arties with ‘nearly identical’ interests are considered ‘substantially the same’ for Colorado River purposes.” Clark v. Lacy, 376 F.3d 682, 686 (7th Cir.2004). Defendants argue that this federal case is parallel to the California state court case because the parties and the issues involved are" }, { "docid": "21862815", "title": "", "text": "stated a cause of action. I come then to the majority’s thesis that having elected to proceed in the first instance in the state court, plaintiffs must return there to obtain relief. Although somewhat appealing on first reading, further reflection reveals serious flaws with this rationale. I assume that if plaintiffs had settled their claims without ever filing suit, the majority would concede that the district court should adjudicate the dispute at hand. Nothing in the majority opinion gives any indication to the contrary, and it does admit that federal question jurisdiction may be invoked. That being so, the filing of the state court suit is the critical factor leading the majority to opt for what may be considered a policy akin to abstention. Because the validity of the settlement is a matter of federal statutory law and restraint of state proceedings is not sought, the three traditional bases for abstention set forth in Colorado River Water Conservation District v. United States, 424 U.S. 800, 814-16, 96 S.Ct. 1236, 1244-45, 47 L.Ed.2d 483 (1976), are not applicable here. The Court has also articulated a narrow fourth category based on “considerations of ‘wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.’ ” Id. at 817, 96 S.Ct. at 1246, (quoting Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952)). In explaining this standard, the Court observed that the pendency of a state proceeding is generally “ ‘no bar to proceedings concerning the same matter in the Federal Court’ ” and emphasized the “unflagging obligation” of a federal court to exercise its jurisdiction. Id. 424 U.S. at 817, 96 S.Ct. at 1246 (quoting McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 505, 54 L.Ed. 762 (1910)). Nevertheless, “exceptional” circumstances permit the “dismissal of a federal suit due to the presence of a concurrent state proceeding.” Id. 424 U.S. at 818. The Colorado River principles were reaffirmed in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74" }, { "docid": "11266110", "title": "", "text": "Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 505, 54 L.Ed. 762 (1910); McLaughlin v. United Virginia Bank, 955 F.2d 930, 934 (4th Cir.1992) (“with regard to parallel state and federal proceedings, the Supreme Court has held, over and over, as have we, that in the usual case the federal courts must hear the cases that fall within their jurisdiction”). In Colorado River, the Supreme Court recognized a limited exception to this general rule based on principles of “wise judicial administration” and “conservation of judicial resources.” Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246. This exception allows a district court to abstain when: (1) parallel proceedings are ongoing in state court, and (2) exceptional circumstances counsel abstention. Id. at 817-19, 96 S.Ct. at 1246-48. As the Supreme Court noted in Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), the task of the district court “is not to find some substantial reason for the exercise of federal jurisdiction ... rather, the task is to ascertain whether there exist ‘exceptional’ circumstances, the ‘clearest justifications,’ that can suffice under Colorado River to justify surrender of that jurisdiction.” Id. at 25-26, 103 S.Ct. at 941-43 (emphasis in original). The Supreme Court has identified several factors that a district court may consider when determining whether exceptional circumstances warrant abstention in light of parallel state proceedings. These factors are: (1) whether the state court has exercised in rem jurisdiction over property involved in the dispute; (2) the relative inconvenience of the federal and state forums; (3) the desirability of avoiding piecemeal litigation; (4) the order of the state and federal suits; (5) whether a federal question is at issue; (6) the adequacy of the state court to protect the federal plaintiffs rights; and (7) whether the state or federal case was brought as a “defensive reaction” to the other. Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246; Moses H. Cone, 460 U.S. at 17-18 n. 20, 23, 26, 103 S.Ct. at 937-38 n. 20, 23, 26; see also McLaughlin, 955 F.2d" }, { "docid": "21585555", "title": "", "text": "of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention.” Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246; accord Moses H. Cone, 460 U.S. at 15, 103 S.Ct. at 936. Rather, Colorado River created a narrow exception to the exercise of federal jurisdiction, and only truly “exceptional” circumstances will justify a stay or dismissal on grounds of judicial economy. Colorado River, 424 U.S. at 818, 96 S.Ct. at 1247; Moses H. Cone, 460 U.S. at 15, 103 S.Ct. at 936; see also Gulfstream Aerospace Corp. v. Mayacamas Corp., — U.S.-, 108 S.Ct. 1133, 1144, 99 L.Ed.2d 296 (1988). In the instant case, however, the District Court did not purport to find any such circumstances, exceptional or otherwise, to justify the stay. It is arguably possible to rely on Colorado River insofar as the Court there cited the avoidance of piecemeal litigation as a factor that might favor a stay. See 424 U.S. at 819, 96 S.Ct. at 1247. That factor assumed importance in Colorado River because the litigation there involved a federal statute under which Congress had explicitly recognized the availability of state systems for the adjudication of water rights and had expressed a strong policy favoring resolution of those rights in a single, comprehensive forum. See id. at 819-20, 96 S.Ct. at 1247-48. No such policy is implicated in the case at bar, and the mere desire to resolve all issues involving related facts in one court does not justify depriving Hoai of his federal forum. As the Supreme Court has made clear, “ ‘the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal Court having jurisdiction.” Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246 (quoting McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 505, 54 L.Ed. 762 (1910)). In fact, in light of the Superior Court judge’s desire to separate Hoai’s federal claims against Sunoco from the non-federal dispute between Hoai and Yo, it is questionable whether judicial economy would" }, { "docid": "23530282", "title": "", "text": "Peoria to the Knox County Circuit Court in Gales-burg. See Appellant’s Br. at 10. II. Analysis A. Colorado River Doctrine The “exceptional-circumstances test” established by the Supreme Court in Colorado River Water Conservation District v. United States, 424 U.S. 800, 817-21, 96 S.Ct. 1236, 1246-48, 47 L.Ed.2d 483 (1976), permits a district court to dismiss or stay an action when there is an ongoing parallel action in state court. As the Court explained in Colorado River, the principles underlying this doctrine “rest on considerations of ‘[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.’ ” 424 U.S. at 817, 96 S.Ct. at 1246 (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952)). Because federal courts have a “virtually unflagging obligation ... to exercise the jurisdiction given them,” the mere fact that an action is pending in state court ordinarily is no bar to parallel federal proceedings. Id.; see also Rosser v. Chrysler Corp., 864 F.2d 1299, 1307 (7th Cir.1988) (surrender of jurisdiction not justified merely because a parallel state action exists); Evans Transp. Co v. Scullin Steel Co., 693 F.2d 715, 717 (7th Cir.1982) (same). Thus, the surrender of jurisdiction in deference to parallel state proceedings for reasons of “wise judicial administration” is warranted only under “limited” and “exceptional” circumstances. Id. at 818. As we explained in Lumen Construction, Inc. v. Brant Construction Co., 780 F.2d 691, 694 (7th Cir.1985), “a federal court cannot lightly abjure its responsibility to assert jurisdiction.” Moreover, the Supreme Court has emphasized that “[o]nly the clearest of justifications” will allow a federal court to surrender jurisdiction because of parallel state-court litigation. See Colorado River, 424 U.S. at 819, 96 S.Ct. at 1247; see also Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16, 25-26, 103 S.Ct. 927, 942, 74 L.Ed.2d 765 (1983). See generally New Orleans Public Serv., Inc. v. Council of New Orleans, — U.S. -, 109 S.Ct. 2506, 2513, 105 L.Ed.2d 298 (1989); Deakins v. Monaghan, 484 U.S. 193, 108 S.Ct." }, { "docid": "4240008", "title": "", "text": "for district courts to stay or dismiss federal lawsuits in deference to parallel state proceedings. The Court held that, in “exceptional” circumstances, 424 U.S. at 818, 96 S.Ct. at 1246-47, a federal court could decline jurisdiction based on ‘“considerations of “[wjise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation,”’” Moses H. Cone Memorial Hospital v.. Mercury Construction Corp., 460 U.S. 1, 15, 103 S.Ct. 927, 936, 74 L.Ed.2d 765 (1983) (quoting Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246 (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952))). The Court in Colorado River mentioned four illustrative factors for determining whether “exceptional circumstances” exist: (1) whether either court has assumed jurisdiction over a res; (2) the inconvenience of the federal forum; (3) the desirability of avoiding piecemeal litigation, and (4) the order in which the forums obtained jurisdiction. In Moses H. Cone, the Court added two additional factors: (5) whether state or federal law controls, and (6) the adequacy of the state forum to protect the parties’ rights. Another factor, mentioned but not applied in Moses H. Cone, 460 U.S. at 17 n. 20, 103 S.Ct. at 937 n. 20, and counted by some courts, is the vexatious or reactive nature of the federal lawsuit, see, e.g., Fuller Co. v. Ramon I. Gil, Inc., 782 F.2d 306, 308-10 (1st Cir.1986). In Colorado River, the Supreme Court emphasized that the stay or dismissal authorized there should be used sparingly. The Court spoke of the “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them,” 424 U.S.- at 817, 96 S.Ct. at 1246, and cautioned that “[o]nly the clearest of justifications will warrant dismissal,” id. at 819, 96 S.Ct. at 1247. The weight a court should give any single factor may vary greatly depending on the ease, and “[n]o one factor is necessarily determinative; a carefully considered judgment taking into account both the obligation to exercise jurisdiction and the combination of factors coun-selling against that exercise is required,” id. at" }, { "docid": "12226923", "title": "", "text": "et al. v. United States et al., 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), a court may, in exceptional circumstances, stay or dismiss a non-exclusive federal claim in face of a parallel state proceeding. In making this determination, the Court must apply a two-part analysis. First, the Court must decide if the federal and state proceedings are truly parallel. See Colorado River, 424 U.S. at 817 (quoting in part McClellan, 217 U.S. at 282) (“Generally, as between state and federal courts, the rule is that ‘the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal Court having jurisdiction....”’) (emphasis added); Moses H. Cone, 460 U.S. at 13 (framing the issue as “the propriety of ... staying] this federal suit out of deference to the parallel litigation brought in state court.”) (emphasis added). The parallelism requirement insures that if the federal district court decides to stay its proceedings, there will be a “complete and prompt resolution of the issues between the parties,” such that the federal court “will have nothing further to do in resolving any substantive part of the case, whether it stays or dismisses.” Moses H. Cone, 460 U.S. at 28. Second, if the two proceedings are found to be sufficiently parallel, the Court proceeds to apply the factors of the “exceptional circumstances” test to determine whether judicial efficiency outweighs the court’s “virtually unflagging obligation to exercise jurisdiction.” See Colorado River, 424 U.S. at 817. The Supreme Court has recognized there are certain extremely limited circumstances in non-exclusive federal jurisdiction cases where a federal court may defer to pending state court proceedings based on considerations of “wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.” Id. Although such circumstances are “extremely limited,” they nevertheless do exist. See Id. at 818. This determination does not rest on a mechanical checklist, but on various, relevant factors that may apply in a given case. See Moses H. Cone, 460 U.S. at 16. No one factor is determinative. Id. The weight to be" }, { "docid": "11037124", "title": "", "text": "if this Court had not resolved this dispute on the merits. Colorado River Abstention The Supreme Court in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), established a narrow basis for district courts to stay or dismiss federal lawsuits in deference to parallel state proceedings. The Court held that in “exceptional circumstances,” a federal court could decline jurisdiction based on “considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.” Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246; see also Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 15, 103 S.Ct. 927, 936, 74 L.Ed.2d 765 (1983). The Court in Colorado River enumerated four factors to determine whether “exceptional circumstances” exist: (1) whether either court has assumed jurisdiction over some res; (2) the inconvenience of the federal forum; (3) the desirability of avoiding piecemeal litigation, and (4) the order in which the forums obtained jurisdiction. Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246. In Moses H. Cone, the Court suggested two other factors: (5) whether state or federal law controls, and (6) the adequacy of the state forum to protect the parties’ rights. Moses H. Cone, 460 U.S. at 23, 26, 103 S.Ct. at 941, 942. Another factor mentioned but not applied in Moses and which some Courts have considered, is the vexatious or reactive nature of the federal lawsuit, Moses H. Cone, 460 U.S. at 17 n. 20, 103 S.Ct. at 937 n. 20; see e.g. Fuller Co. v. Ramon I. Gil, Inc., 782 F.2d 306, 308-310 (1st Cir.1986). In Colorado River, the Supreme Court stressed that Courts should stay or dismiss cases under this doctrine with great caution. The Court noted the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them, 424 U.S. at 817, 96 S.Ct. at 1246, and warned that “only the clearest of justifications will warrant dismissal” id. at 819, 96 S.Ct. at 1247. The court may weigh any single factor differently, depending on the case," }, { "docid": "18587291", "title": "", "text": "State action, and third-party defendants are named only in the instant action. Defendants now request that this Court enter an order dismissing the instant action based on the doctrine of abstention, or in the alternative, enter an order staying all proceedings until there has been a resolution of the State action. DISCUSSION Defendants contend that this Court should dismiss or stay this action under the Colorado River doctrine, in light of the State action. Plaintiffs respond that, under the circumstances, neither a dismissal nor a stay of this action is appropriate. The federal courts have a “virtually unflagging obligation ... to exercise the jurisdiction given them.” Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246. Although “[a]s between federal district courts ... the general principle is to avoid duplicative litigation,” the general rule “as between state and federal courts ... is that ‘the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction____’” Id. (quoting McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 505, 54 L.Ed. 762 (1910)). Nevertheless, “exceptional” circumstances occasionally do arise, “permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration.” Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246. However, in order to prevail, the moving party must carry a “heavy burden,” Orix Credit Alliance, Inc. v. Bell Realty, Inc., No. 93 Civ. 4949, 1994 WL 86394, at *2 (S.D.N.Y. March 16, 1994); National Union Fire Ins. Co. v. Thomas 713 F.Supp. 62 (S.D.N.Y.1988), for “[ojnly the clearest of justifications will warrant dismissal,” Colorado River, 424 U.S. at 819, 96 S.Ct. at 1247. The Supreme Court has elaborated: the decision whether to dismiss a federal action because of parallel state-court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given ease, with the balance heavily weighted in favor of the exercise of jurisdiction. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S." }, { "docid": "12910669", "title": "", "text": "reversed. ANALYSIS A. Abstention under Colorado River In Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), the Supreme Court listed various circumstances under which a federal district court might decline to exercise jurisdiction based on the pendency of a state action arising out of the same transaction. The Colorado River approach was premised upon “consideration of ‘wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.’ ” Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246 (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952)). Stressing that these circumstances were very narrow, the Court set forth four factors: 1. whether property is involved in the litigation; 2. the inconvenience of the federal forum; 3. the desirability of stopping piecemeal litigation; and 4. the order in which jurisdiction was obtained by the courts. 424 U.S. at 813, 96 S.Ct. at 1244. In Moses H. Cone v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1982), the Court added two more elements: 5. whether federal law or state law controls and 6. whether the state forum will adequately protect the interests of the parties. In Colorado River itself, the Court sustained the district court’s stay of its own proceedings pending resolution of the state court proceedings. The Court nevertheless cautioned that “[o]nly the clearest of justifications will warrant dismissal.” 424 U.S. at 819, 96 S.Ct. at 1247. After Moses H. Cone, in which the Court reversed the district court’s grant of a stay, commentators have suggested that “there will be rare cases in which ‘exceptional circumstances’ will exist justifying stay or dismissal because of a concurrent state proceeding.” Wright, Miller and Cooper, Federal Practice & Procedure § 4247, 150-54. This court recently considered the application of Colorado River principles in Villa Marina Yacht Sales v. Hatteras Yachts, 915 F.2d 7 (1st Cir.1990). In Villa Marina, we held that “the pendency of an overlapping state court suit is an insufficient basis" }, { "docid": "16481639", "title": "", "text": "to usurp that which is not given. The one or the other would be treason to the constitution. This principle is no less true in cases where, as here, there is a parallel litigation in a state court. “The rule is well recognized that the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdic-tion_” Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246 (quoting McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 505, 54 L.Ed. 762 (1910)); accord Chicot County v. Sherwood, 148 U.S. 529, 534, 13 S.Ct. 695, 697-98, 37 L.Ed. 546 (1893); University of Maryland v. Peat Marwick Main & Co., 923 F.2d 265, 275-76 (3d Cir.1991) (“The general rule regarding simultaneous litigation of similar issues in both state and federal courts is that both actions may proceed until one has come to judgment, at which point that judgment may create a res judicata or collateral estoppel effect on the other action.”) (citing McClellan). Nevertheless, in Colorado River, the Supreme Court recognized that there are certain extremely limited circumstances in which a federal court may defer to pending state court proceedings based on considerations of “wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.” 424 U.S. at 817, 96 S.Ct. at 1246. It empha sized that “[abdication of the obligation to decide cases can be justified ... only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest.” Id. at 813, 96 S.Ct. at 1244. The Court then set forth several factors which can support this type of abstention, after cautioning that no one factor is determinative and “[o]nly the clearest of justifications will warrant dismissal.” Id. at 818-19, 96 S.Ct. at 1247. Those factors included: (1) whether the state court assumed in re to jurisdiction over property; (2) the inconvenience of the federal forum; (3) the desirability of avoiding piecemeal litigation; and (4) the order in which jurisdiction was obtained by" }, { "docid": "1256648", "title": "", "text": "Cone, 460 U.S. at 14-15, 103 S.Ct. at 936-37; Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246; Nakash v. Marciano, 882 F.2d 1411, 1415 n. 5 (9th Cir.1989) (amended Aug. 23, 1989) (Nakash) (“the Supreme Court has flatly rejected this [abstention] categorization”); 17A C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4247 at 150-51 (2d ed. 1988). Unlike abstention, which rests on “regard for federal-state relations” and “considerations of proper constitutional adjudication,” Colorado River rests on “considerations of ‘[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.’ ” Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246, quoting Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952) {Kerotest)] see also Cone, 460 U.S. at 14-15, 103 S.Ct. at 936-37. The Supreme Court and this circuit have identified and explained how to apply a nonexclusive list of relevant criteria for determining whether exceptional circumstances exist to justify invoking Colorado River. See Cone, 460 U.S. at 15-16, 19-27,103 S.Ct. at 936-37, 938-43; Nakash, 882 F.2d at 1415-16; American International Underwriters (Philippines), Inc. v. Continental Insurance Co., 843 F.2d 1253, 1257 (9th Cir. 1988). In a ease where a district court invokes Colorado River, it makes no difference to the state proceeding whether the federal action is stayed or dismissed. [A] stay is as much a refusal to exercise federal jurisdiction as a dismissal. When a district court decides to dismiss or stay under Colorado River, it presumably concludes that the parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties. If there is any substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or dismissal at all. Thus, the decision to invoke Colorado River necessarily contemplates that the federal court will have nothing further to do in resolving any substantive part of the case, whether it stays or dismisses. Cone, 460 U.S. at 28, 103 S.Ct. at 943. (citations omitted)." } ]

[ { "docid": "22079270", "title": "", "text": "immediate evidence of conduct which may properly give rise to a conclusion that a crime is taking place. GOLDBERG, Circuit Judge (dissenting) : I dissent. I refuse to join my brothers as a pallbearer at the funeral of the Fourth Amendment in this Circuit. Although I find, rather disconcertingly, that my funeral dirge is a solo, nonetheless, I believe very strongly that the Court has erred in vacating the panel decision and affirming the district court’s denial of the motion to suppress. I realize that the clamor for law and order in this country is well-founded, but to suppose for one minute that the desired result can be achieved by diluting established rights is to commit a mistake of the highest order. It may offend many people that under our system of criminal justice the criminal goes free when the constable blunders, but such is the law of the land. The Supreme Court has unequivocably mandated that the need to preserve the individual’s right of privacy against governmental intrusion often requires that this right take precedence over constabulary duties that must and should be done. It is unfortunate that this Court today treats the Fourth Amendment as if it were some cancerous tumor that must be constantly pared away lest it consume the whole. It is not our function to manufacture excuses for illegal police behavior, as the majority does here. The Fourth Amendment commands a greater respect. No less than fourteen members of the Court have joined Judge Thornberry’s opinion which finds, for the first time in this litigation, that the briefcases were “voluntarily abandoned” and that appellants therefore have no standing to contest the search. The Court’s utilization of the abandonment principle on the facts of this case is at best dubious. Five members of this Court have joined Chief Judge Brown’s concurrence which, in my humble opinion, utterly ignores the basic thrust of the Supreme Court’s decisions in search and seizure, and totally rewrites the Fourth Amendment. Although a majority of the Court has not joined in the Chief Judge’s opinion, and it is therefore not the" } ]

[ { "docid": "1707173", "title": "", "text": "the facts set forth, appellants are entitled to have these issues adjudicated. Therefore, the complaint as amended should not have been dismissed. Order affirmed in part, reversed in part. ELY, Circuit Judge (concurring in part; dissenting in part): I concur in my Brother Moore’s majority opinion insofar as it condemns, on Fourth Amendment grounds, the over-breadth of the warrant and the absolutely unreasonable scope of the search. I would go further, however, and hold in favor of the appellants as to the so-called yellow sheets and green cards because their seizure, in my opinion, was thoroughly corrupted by the intolerable process under which the search and seizure were conducted. Moreover,. I do not retreat from the Fifth Amendment views originally set forth by me and which were originally endorsed by both Judges Moore and Barnes. I note at the beginning that I see no irreconcilable conflict between my original opinion and our court’s opinion in United States v. Murray, 492 F.2d 178 (9th Cir. 1973). In our case, the flagrant abuse of the search and seizure process necessitated our judicial disapproval. In Murray, on the other hand, despite a substantial question as to whether a certain address book was testimonial, the seizure of the book was properly upheld as resulting from a search incident to a lawful arrest. Because the original opinion written by me for a unanimous court does not wholly conflict with the present opinion of Judge Moore, no useful purpose would be served by now reproducing the whole of my first opinion. That portion which remains pertinent, and to which I adhere, reads as follows: As we have said, the appellants contend that the searches and seizures of their books and records violated the privilege against compulsory self-incrimination under the Fifth Amendment. It is clear that had the Government attempted to acquire possession of these records and writings pursuant to a subpoena, appellants would have been privileged under the Fifth Amendment to refuse their production. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886); United States v. Cohen, 388 F.2d 464 (9th" }, { "docid": "8424215", "title": "", "text": "enforcement and the fullest possible protection of Fourth Amendment rights coincided in requiring that the car and its contents remain undisturbed pending application for a warrant, but that at least one of the five agents remain behind on watch. My brother Roney attempts to avoid any such approach by contending that, since the stationing of an agent at the car would itself constitute an intrusion on Frick’s Fourth Amendment rights, the further intrusion of the search and seizure is without additional constitutional significance. I hope that in my shock at such a contention I am not being unfair to the majority; but I can only interpret the opinion as holding that once a small infringement on individual rights is accepted in the name of some important state interest, then any-added burden is necessarily proper. The theory is apparently that, if you can take an inch, you are constitutionally entitled to a mile. Even to state the proposition is to reveal its fragility. The holding in Chambers v. Maroney, supra, on which the panel evidently relies, is not to the contrary. Chambers held that, given the probable cause and exigent circumstances necessary for a highway search under Carroll, the police could instead impound the car and conduct the search at the station. In Chambers the final intrusion rested on independent constitutional justifications; and in Coolidge a majority of the Supreme Court explicitly rejected the notion, evidently advanced by the panel here, that one category of Fourth Amendment exception can justify intrusions different in degree or type. 403 U.S. at 473-484. Indeed, the Coolidge opinion specifically noted the presence of police guards on duty at the defendant’s house after his arrest as one factor obviating the need for an. immediate search. 403 U.S. at 461, & n. 18, 91 S. Ct. 2022. The final deficiency in the panel opinion lies in its failure to explain why, granting for the moment a right to seize the briefcase, the search itself could not have awaited a presentation of the facts to a neutral magistrate. Certainly the panel majority cannot hope to rest behind the" }, { "docid": "22658052", "title": "", "text": "(1971). Mr. Chief Justice Burger, dissenting in. part and concurring in part. I join the dissenting opinion of Mr. Justice White and in Parts II and III of Mr. Justice Black’s concurring and dissenting opinion. I also agree with most of what is said in Part I of Mr. Justice Black’s opinion, but I am not prepared to accept the proposition that the Fifth Amendment requires the exclusion of evidence seized in violation of the Fourth Amendment. I join in Part III of Mr. Justice Stewart’s opinion. This case illustrates graphically the monstrous price we pay for the exclusionary rule in which we seem to have imprisoned ourselves. See my dissent in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, ante, p. 411. On the merits of the case I find not the slightest basis in the record to reverse this conviction. Here again the Court reaches out, strains, and distorts rules that were showing some signs of stabilizing, and directs a new trial which will be held more than seven years after the criminal acts charged. Mr. Justice Stone, of the Minnesota Supreme Court, called the kind of judicial functioning in which the Court indulges today “bifurcating elements too infinitesimal to be split.” Mr. Justice Black, concurring and dissenting. ■ After a jury trial in a New Hampshire state court, petitioner was convicted of murder and sentenced to life imprisonment. Holding that certain evidence introduced by the State was seized during an “unreasonable” search and that the evidence was inadmissible under the judicially created exclusionary rule of the Fourth Amendment, the majority reverses that conviction. Believing that the search and seizure here was reasonable and that the Fourth Amendment properly construed contains no such exclusionary rule, I dissent. The relevant facts are these. Pamela Mason, a 14-year-old school girl, lived with her mother and younger brother in Manchester, New Hampshire. She occasionally worked after school as a babysitter and sought such work by posting a notice, on a bulletin board in a local laundromat. On January 13, 1964, she arrived, home from school about 4:15 p." }, { "docid": "22539045", "title": "", "text": "the Court’s broadest concept of privacy. As I said in Griswold v. Connecticut, 381 U. S. 479, “The Court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals. But there is not.” (Dissenting opinion, at 508.) I made clear in that dissent my fear of the dangers involved when this Court uses the “broad, abstract and ambiguous concept” of “privacy” as a “comprehensive substitute for the Fourth Amendment’s guarantee against 'unreasonable searches and seizures.’ ” (See generally dissenting opinion, at 507-527.) The Fourth Amendment protects privacy only to the extent that it prohibits unreasonable searches and seizures of “persons, houses, papers, and effects.” No general right is created by the Amendment so as to give this Court the unlimited power to hold unconstitutional everything which affects privacy. Certainly the Framers, well acquainted as they were with the excesses of governmental power, did not intend to grant this Court such omnipotent lawmaking authority as that. The history of governments proves that it is dangerous to freedom to repose such powers in courts. For these reasons I respectfully dissent. The first paragraph of my Brother Harlan's concurring opinion is susceptible of the interpretation, although probably not intended, that this Court “has long held” eavesdropping to be a violation of the Fourth Amendment and therefore “presumptively unreasonable in the absence of a search warrant.” There is no reference to any long line of cases, but simply a citation to Silverman, and several cases following it, to establish this historical proposition. In the first place, as I have indicated in this opinion, I do not read Silverman as holding any such thing; and in the second place, Silverman was decided in 1961. Thus, whatever it held, it cannot be said it “has [been] long held.” I think my Brother Harlan recognizes this later in his opinion when he admits that the Court must now overrule Olmstead and Goldman. In having to overrule these cases in order to establish the holding the Court adopts" }, { "docid": "22672694", "title": "", "text": "also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I have expressed the view many times that First Amendment freedoms, for example, have suffered from a failure of the courts to stick to the simple language of the First Amend-' ment in construing it, instead of invoking multitudes of words substituted for those the Framers used. See, e. g., New York Times Co. v. Sullivan, 376 U. S. 254, 293 (concurring opinion); cases collected in City of El Paso v. Simmons, 379 U. S. 497, 517, n. 1 (dissenting opinion); Black, The Bill of Rights, 35 N. Y. U. L. Rev. 865. For these reasons I get nowhere in this case by talk about a constitutional “right of privacy” as an emanation from one or more constitutional provisions. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court’s judgment and the reasons it gives for holding this Connecticut law unconstitutional. This brings me to the arguments made by my Brothers Harlan, White and Goldberg for invalidating the Connecticut law. Brothers Harlan and White would invalidate it by reliance on the. Due Process Clause of. the Fourteenth Amendment, but Brother Goldberg, while agreeing with Brother Harlan, relies also on The Ninth Amendment. I have no doubt that the Connecticut-law could be applied in such a way as to abridge freedom of speech and press and therefore violate the First and Fourteenth Amendments. My disagreement with the Court’s opinion holding that there is such a violation here is a narrow one, relating to the application of the First Amendment to the facts and circumstances of this particular case. But my disagreement with Brothers Harlan, White and Goldberg is more basic. I think that if properly construed neither the Due Process Clause nor the Ninth Amendment, nor both together, could under any circumstances be a proper basis for invalidating the Connecticut" }, { "docid": "8424202", "title": "", "text": "v. New Hampshire, 1971, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 29 L. Ed.2d 564; nor are these exigencies to be easily found. The Supreme Court has persistently reminded us that the exceptions are few in number, Katz v. United States, 1967, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576; limited in construction, Jones v. United States, 1958, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514; and difficult of proof, McDonald v. United States, 1948, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153. Only when these admonitions are firmly in mind is it possible to appreciate the broad swathe the panel’s opinion cuts through Fourth Amendment law. Defendants, Robert Lee Frick and Quimet John Petersen, were indicted on five counts of conspiracy and fraud on November 23, 1971. On the following morning five agents of the Federal Bureau of Investigation arrived at Frick’s apartment armed with an arrest warrant. Defendant Frick was taken into custody in the parking lot of his apartment building. At the time of the arrest the agents patted Frick down and handcuffed him. During the course of this arrest procedure agent McDaniels observed a briefcase on the floor of the back seat of Frick’s car. McDaniels removed the briefcase and searched it on the scene. Certain papers were discovered as a result of this search which were introduced into evidence at the trial. This followed the decision of a magistrate and subsequently of the trial judge himself that the actions, of the agent had not violated the Fourth Amendment’s guarantee against warrantless searches. The panel majority affirms this disposition on what appear to be two distinct bases: (1) the search was justified under Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, as incident to a lawful arl’est; and (2) the search was within the guidelines laid down in Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, for cases involving automobiles. I. Search Incident to Arrest The standards for acceptable action under the Fourth Amendment as expressed in Supreme Court opinions" }, { "docid": "8424200", "title": "", "text": "punishment did not result from sentencing the defendants to prison rather than probation. (15) It was not error for the trial judge to deny defendants’ motions for acquittal and new trial. Affirmed. . Defendant Petersen voluntarily appeared before the magistrate after learning of the indictments. The arresting officers did not know of this. At the time of Frick’s arrest, two of the officers had failed to locate Petersen at his residence and had joined the other officers at Frick’s residence, in probability expecting to possibly locate Petersen there. . Petersen claims eighteen errors were committed; Frick bases his appeal on six. . Note, Joint and Single Trials under Rules 8 and 14 of the Federal Rules of Criminal Procedure, 74 Yale L.J. 553, 554-56 (1965). GOLDBERG, Circuit Judge (concurring in part and dissenting in part): I concur in Parts I and III of the opinion of my brother Roney, but I am compelled to dissent from the panel’s holding that the seizure and search of the defendant Frick’s briefcase was lawful. This Circuit has already heard from me at some length on what I feel to be the erosion of Fourth Amendment guarantees by a hostile judiciary, see United States v. Colbert and Reese, 5 Cir. 1973, 474 F.2d 174, 179; and it is with some reluctance that I have undertaken yet another dissent in the area. My brothers may well hope, as I do, that this will be my postlude to the dirges that have been scored for the Fourth Amendment, but I cannot absolutely forswear future elegies, for the concepts of individuality and privacy expressed in that Amendment are sacred to me. This latest exercise in loose construction, if not distortion, of both the language of the Constitution and the applicable decisions of the Supreme Court requires an answer. For that reason I regretfully, but firmly, dissent. Our inquiry must begin, as the panel opinion itself seems to accept, with the recognition that warrantless searches are always exceptions to the general Fourth Amendment rule. As such they are “per se unreasonable” unless justified by certain exigent circumstances, Coolidge" }, { "docid": "23495505", "title": "", "text": "cavity search. See 3 W. LaFave, Search and Seizure § 10.5 (1978); Barnett, A Report on Search and Seizure at the Border, 1 Am.Crim.L.Q. 36 (Aug. 1964); Ittig, The Rites of Passage: Border Searches and the Fourth Amendment, 40 Tenn. L.Rev. 329 (1973); Comment, The Reasonableness of Border Searches, 4 Cal.W.L.Rev. 355 (1968); Note, From Bags to Body Cavities: The Law of Border Searches, 74 Colum.L.Rev. 53 (1974); Note, At the Border of Reasonableness: Searches by Customs Officials, 53 Cornell L.Rev. 871 (1968); Note, Search and Seizure at the Border — The Border Search, 21 Rutgers L.Rev. 513 (1967); Comment, Border Searches: An Exception To Probable Cause, 3 St. Mary’s L.J. 87 (1971); Comment, Unwarranted Power at the Border: The Intrusive Body Search, 32 Sw.L.J. 1005 (1978); Note, Intrusive Border Searches — Is Judicial Control Desirable? 115 U.Pa.L.Rev. 276 (1966); Note, Border Searches and the Fourth Amendment, 77 Yale L.J. 1007 (1968). RONEY, Circuit Judge, specially concurring: I concur in the result not only because the conclusion reached by Judge Vance’s opinion appears to me to be correct, but because in my judgment the facts, as a matter of law, were sufficient to support the officer’s conduct judged by the reasonable suspicion standard, the outer limits of which can be defined only in terms of its application to fact situations. R. LANIER ANDERSON, III, Circuit Judge, specially concurring: I concur in the result reached by the majority, but only because, in my opinion, the patdown search at issue was justified by reasonable suspicion, as that test has evolved in the previous decisions of this court cited and discussed in Judge Hatch-ett’s dissent. Today’s majority opinion applies the flexible rule of United States v. Himmelwright, 551 F.2d 991 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977), and United States v. Afanador, 567 F.2d 1325 (5th Cir. 1978) — that the requisite justification for a search varies with the intrusiveness thereof — and merely expands by one notch those searches which require no justification. Our previous cases had held that a routine search of luggage at" }, { "docid": "8424203", "title": "", "text": "agents patted Frick down and handcuffed him. During the course of this arrest procedure agent McDaniels observed a briefcase on the floor of the back seat of Frick’s car. McDaniels removed the briefcase and searched it on the scene. Certain papers were discovered as a result of this search which were introduced into evidence at the trial. This followed the decision of a magistrate and subsequently of the trial judge himself that the actions, of the agent had not violated the Fourth Amendment’s guarantee against warrantless searches. The panel majority affirms this disposition on what appear to be two distinct bases: (1) the search was justified under Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, as incident to a lawful arl’est; and (2) the search was within the guidelines laid down in Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, for cases involving automobiles. I. Search Incident to Arrest The standards for acceptable action under the Fourth Amendment as expressed in Supreme Court opinions have seldom been models of clarity. But the parameters of Chimel come as close to precision as seems possible in an area of the law necessarily concerned with “reasonable” action under various “exigent” circumstances. Chimel provides that at the time and place of arrest the apprehending officers may conduct “a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S. at 763, 89 S.Ct. at 2040. At the time of the search in question here the defendant Frick was in the custody of five federal agents; he either had been, or was in the process of being, handcuffed; and he stood in an open parking lot between one and one half and two feet away from his automobile. On the basis of these facts my brothers in the majority conclude that a search of the briefcase was justified out of a reasonable fear that Frick might gain" }, { "docid": "22658051", "title": "", "text": "was left open in Jones v. United States, 357 U. S. 493, 499-500 (1958), and although my Brothers White and Stewart both feel that their contrary assumptions on this point are at the root of their disagreement in this case, ante, at 477-479; post, at 510-512, 521, the Court again leaves the issue open. Ante, at 481. In my opinion it does well to do so. This matter should not be decided in a state case not squarely presenting the issue and where it was not fully briefed and argued. I intimate no view on this subject, but until it is ripe for decision, I hope in a federal case, I am unwilling to lend my support to setting back the trend of our recent decisions. Beeause of my views as to the retroactivity of Chimel v. California, 395 U. S. 752 (1969), I do not believe the seizure of the Pontiac can be upheld as incident to Coolidge’s arrest. ■ See my separate opinion in Mackey v. United States, 401 U. S. 667, 675 (1971). Mr. Chief Justice Burger, dissenting in. part and concurring in part. I join the dissenting opinion of Mr. Justice White and in Parts II and III of Mr. Justice Black’s concurring and dissenting opinion. I also agree with most of what is said in Part I of Mr. Justice Black’s opinion, but I am not prepared to accept the proposition that the Fifth Amendment requires the exclusion of evidence seized in violation of the Fourth Amendment. I join in Part III of Mr. Justice Stewart’s opinion. This case illustrates graphically the monstrous price we pay for the exclusionary rule in which we seem to have imprisoned ourselves. See my dissent in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, ante, p. 411. On the merits of the case I find not the slightest basis in the record to reverse this conviction. Here again the Court reaches out, strains, and distorts rules that were showing some signs of stabilizing, and directs a new trial which will be held more than seven years" }, { "docid": "23435314", "title": "", "text": "jurors, and after re-consultation with your fellow jurors if you are still convinced that his guilt has not been proven beyond all reasonable doubt, do you tell me here and now under your solemn sworn oath as jurors that you will have the courage and the fortitude, if necessary, as long as you believe that, to stand alone and to face those other eleven jurors and continue to vote not guilty so long as you have that reasonable doubt in your mind? Do you tell me that you have that courage and that fortitude? Will you nod your head each and every one? You tell me that you will not be swayed by the majority rule but as long as you have that reasonable doubt in your mind you can stand tall and straight and say, ‘No, I am not convinced of his guilt and I will continue to vote not guilty if it takes staying here till doom’s day’?” COLEMAN, Circuit Judge (concurring specially): For the reasons stated in my opinion in Thaggard v. United States, 5 Cir., 1965, 354 F.2d 735, 739, I would, if it were within my power, do away with the Allen charge. Since, however, the Supreme Court of the United States has approved it and after seventy six years has never seen fit to withdraw that approval I consider myself bound by the unchanged views of the High Court. GOLDBERG, Circuit Judge, with whom JOHN R. BROWN, Chief Judge, and WISDOM, GODBOLD, INGRAHAM and RONEY, Circuit Judges, join (concurring in part and dissenting in part) : I concur in the en banc Court’s affirmance of this conviction, but for the reasons stated in the panel opinion, 468 F.2d 652, I must respectfully dissent from the Court’s refusal to prohibit further use of the “dynamite charge” in this Circuit. The instant conviction was obtained after the trial judge delivered an Allen charge that the original panel held was in compliance with all requirements heretofore laid down in this Circuit. The panel was nevertheless troubled by the use of the charge, and we expressed a. desire" }, { "docid": "8424199", "title": "", "text": "be produced to the defense, just that which is material. United States v. Jordan, 399 F.2d 610, 615 (2d Cir. 1968). Nor is Brady applicable at pre-trial stages. Archer v. United States, 393 F.2d 124, 126 (5th Cir. 1968). (10) The Government has no duty to call all of the witnesses it subpoenas. United States v. Harper, 460 F.2d 705, 706 (5th Cir. 1972). (11) The jury was properly instructed concerning the indictment, and could have copies of it during deliberation. See United States v. Baker, 418 F.2d 851 (6th Cir. 1969), cert, denied, 397 U.S. 1015, 90 S.Ct. 1248, 25 L.Ed.2d 429 (1970). (12) Taken as a whole, the jury instruction to disregard the testimony of Mr. Franks was proper since the testimony was hearsay. (13) The trial judge could consider the defendants’ use of assumed names since the only limitation on the information the judge is permitted to consider in sentencing is that which in fact is not true. Davis v. United States, 376 F.2d 535 (5th Cir. 1967). (14) Cruel and unusual punishment did not result from sentencing the defendants to prison rather than probation. (15) It was not error for the trial judge to deny defendants’ motions for acquittal and new trial. Affirmed. . Defendant Petersen voluntarily appeared before the magistrate after learning of the indictments. The arresting officers did not know of this. At the time of Frick’s arrest, two of the officers had failed to locate Petersen at his residence and had joined the other officers at Frick’s residence, in probability expecting to possibly locate Petersen there. . Petersen claims eighteen errors were committed; Frick bases his appeal on six. . Note, Joint and Single Trials under Rules 8 and 14 of the Federal Rules of Criminal Procedure, 74 Yale L.J. 553, 554-56 (1965). GOLDBERG, Circuit Judge (concurring in part and dissenting in part): I concur in Parts I and III of the opinion of my brother Roney, but I am compelled to dissent from the panel’s holding that the seizure and search of the defendant Frick’s briefcase was lawful. This Circuit has already" }, { "docid": "7664552", "title": "", "text": "years before the Supreme Court of the United States, in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, made that rule a requirement of 14th Amendment due process. CHAMBERS, Circuit Judge (concurring) : I now concur on rehearing with Judge Madden in this case contrary to the position I took in concurring with Judge Jertberg when we heard the case. 333 F.2d 210. At that time, I thought we were bound by higher authority to hold in accordance with Judge Jertberg’s views. Now I have decided that this is a case not yet reached by the Supreme Court. It seems to me that the freely given permission of Dolores Wright, one joint but casual occupant of the bathroom, for search of the medicine chest should not offend the constitutional protections given the other joint user of the bathroom, Richard Burge. Such protection is a little too much right of privacy. Further, the evidence was simply driving a ten penny nail into a well nailed and sealed coffin. In reversing my position, there is no way I can make myself “look good.” But my commission says I was appointed during good behavior. It says nothing about being appointed to “look good.” JERTBERG, Circuit Judge: (dissenting) Although not noted in Judge Madden’s opinion, it should be stated that the decision of a majority of the panel to affirm the judgment of conviction was made on a rehearing of the cause following the decision of the panel [Judge Madden dissenting] reversing the judgment of conviction and remanding the cause to the District Court for a new trial. See Burge v. United States, 333 F.2d 210 (9th Cir. 1964). I dissent from the decision of the majority and I would reverse the judgment of conviction and remand the cause to the District Court for a new trial for the reasons stated in the majority opinion in Burge v. United States, supra." }, { "docid": "15412734", "title": "", "text": "for rehearing on the grounds stated by me in my original dissent to the opinion of the court, and I also wish to incorporate in this dissent all that is so well stated by Judge Wisdom in his dissent from the denial of rehearing en banc. Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges. JOHN R. BROWN, Chief Judge, with whom GODBOLD, Circuit Judge, joins, dissenting: The factors outlined by Judge Tuttle’s dissent and those in parts A, D and E of Judge Wisdom’s dissent convince me that this case should be reheard en banc. I dissent to the Court’s failure to grant it. WISDOM, Circuit Judge, with whom GOLDBERG and SIMPSON, Circuit Judges join, dissenting from the denial of rehearing en banc: With deep distress and profound regret I note the refusal of a majority of the members of this Court to give en banc consideration to this case. The absence of en banc consideration of the constitutionality of the solitary confinement procedures of the Texas Department of Corrections compounds the unfortunate result reached by the panel majority. Judge Tuttle’s dissent from the panel decision effectively criticizes the result and the reasoning of the panel majority and affirmatively establishes a foundation, on the facts and on the law, for a contrary result. Notwithstanding my repetition of some of Judge Tuttle’s views, I feel compelled to add my reflections on the case, so that the Court’s action will not be taken as a routine rejection of a petition for rehearing en banc. A. Rule 35 of the Federal Rules of Appellate Procedure provides in pertinent part: A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals in banc. Such a hearing or rehearing is not favored and ordinarily will not be ordered except when the proceeding involves a question of exceptional importance. (Emphasis supplied.) “[I]n view of recent tragic incidents in this Nation’s prisons and" }, { "docid": "8424214", "title": "", "text": "in their initial assignment to apprehend a man, and having reason to believe that he would arrive at a certain location, blithely departed that location leaving no one behind to stand guard. To my mind, the action of the agents in departing the scene speaks more convincingly than a volume of post hoc judicial theorizing. At the very-least, it points up the failure of the Government to fulfill its burden of clearly demonstrating its contention that there was need for. an exception to the warrant requirement, United States v. Jef-fers, 1951, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59, because of a reasonable fear on the part of the agents that “confederates [were] waiting to move the evidence.” 403 U.S. at 462, 91 S.Ct. at 2036. The size of the FBI detachment present at Frick’s apartment on the morning of his arrest and the nature of its assignments are strong indications of the inapplicability of Carroll and its progeny to this case in another sense as vtell. Surely in this instance sound law enforcement and the fullest possible protection of Fourth Amendment rights coincided in requiring that the car and its contents remain undisturbed pending application for a warrant, but that at least one of the five agents remain behind on watch. My brother Roney attempts to avoid any such approach by contending that, since the stationing of an agent at the car would itself constitute an intrusion on Frick’s Fourth Amendment rights, the further intrusion of the search and seizure is without additional constitutional significance. I hope that in my shock at such a contention I am not being unfair to the majority; but I can only interpret the opinion as holding that once a small infringement on individual rights is accepted in the name of some important state interest, then any-added burden is necessarily proper. The theory is apparently that, if you can take an inch, you are constitutionally entitled to a mile. Even to state the proposition is to reveal its fragility. The holding in Chambers v. Maroney, supra, on which the panel evidently relies," }, { "docid": "8424201", "title": "", "text": "heard from me at some length on what I feel to be the erosion of Fourth Amendment guarantees by a hostile judiciary, see United States v. Colbert and Reese, 5 Cir. 1973, 474 F.2d 174, 179; and it is with some reluctance that I have undertaken yet another dissent in the area. My brothers may well hope, as I do, that this will be my postlude to the dirges that have been scored for the Fourth Amendment, but I cannot absolutely forswear future elegies, for the concepts of individuality and privacy expressed in that Amendment are sacred to me. This latest exercise in loose construction, if not distortion, of both the language of the Constitution and the applicable decisions of the Supreme Court requires an answer. For that reason I regretfully, but firmly, dissent. Our inquiry must begin, as the panel opinion itself seems to accept, with the recognition that warrantless searches are always exceptions to the general Fourth Amendment rule. As such they are “per se unreasonable” unless justified by certain exigent circumstances, Coolidge v. New Hampshire, 1971, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 29 L. Ed.2d 564; nor are these exigencies to be easily found. The Supreme Court has persistently reminded us that the exceptions are few in number, Katz v. United States, 1967, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576; limited in construction, Jones v. United States, 1958, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514; and difficult of proof, McDonald v. United States, 1948, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153. Only when these admonitions are firmly in mind is it possible to appreciate the broad swathe the panel’s opinion cuts through Fourth Amendment law. Defendants, Robert Lee Frick and Quimet John Petersen, were indicted on five counts of conspiracy and fraud on November 23, 1971. On the following morning five agents of the Federal Bureau of Investigation arrived at Frick’s apartment armed with an arrest warrant. Defendant Frick was taken into custody in the parking lot of his apartment building. At the time of the arrest the" }, { "docid": "8424217", "title": "", "text": "discredited notion that lesser intrusions can justify greater ones. See United States v. Garay, 5 Cir. 1973, 477 F.2d 1306; United States v. Brett, 5 Cir. 1969, 412 F.2d 401, 406. Viewed from any angle there were no circumstances requiring the agents to search without a warrant at the time of Frick’s arrest. And in the absence of such compulsion, the representatives of the United States, whether officers in the field or judges on the appellate bench, are never justified in departing from the Constitution’s command that searches be authorized by warrants. In epilogue I can only express my hope that the current judicial mood will not result in the relegation of the Fourth Amendment to oblivion. Privacy meant so much to the founding fathers that, in order to guarantee its primacy, they were willing to countenance the possibility that criminals might at times conceal the fruits or other indicia of their crimes. The wiser course for both judges and private citizens is to heed their teachings on the fundamental requirements -of a free society. This is my judicial philosophy^ — strict construc-tionism, if you please. Before GOLDBERG, CLARK and RONEY, Circuit Judges. PER CURIAM: On petitions for rehearing, we have considered whether our opinion sets any precedent in the law of search and seizure as it applies to so-called exigent circumstances unrelated to the execution of a warrant for arrest. Believing as we do, that all facts must be considered in .determining the reasonableness of a search without a warrant, our holding here is not compartmentalized so as to make any facts unimportant and we voice no opinion whatsoever as to whether we would hold this search reasonable absent the arrest warrant or upon any of the other facts differing from those at bar. The petitions for rehearing are denied. Judge Goldberg would grant the petitions for rehearing for the reasons set forth in his dissent to the panel opinion. No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules" }, { "docid": "1707172", "title": "", "text": "as to the yellow sheets and green cards, copies of which the government may retain and use subject, however, to any and all objections thereto, including objections based on the Fifth Amendment, in any proceeding, civil or criminal, which may be raised by the VonderAhes. Insofar as the complaint seeks money damages because of the Agents’ acts, the serious pecuniary loss caused thereby would appear to bring this case within the Bivens doctrine. In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court upheld federal jurisdiction over such a suit and held that money damages may be recovered for any injuries consequent upon a violation of the Fourth Amendment by federal officials. Mr. Justice Harlan in his concurring opinion pointed to the judiciary’s “particular responsibility to assure the vindication of constitutional interests such as are embraced by the Fourth Amendment.” Bivens, supra, at 407, 91 S.Ct. at 2010. The amended complaint seeks damages of $15,000 for the description of the doctor’s practice. Upon the facts set forth, appellants are entitled to have these issues adjudicated. Therefore, the complaint as amended should not have been dismissed. Order affirmed in part, reversed in part. ELY, Circuit Judge (concurring in part; dissenting in part): I concur in my Brother Moore’s majority opinion insofar as it condemns, on Fourth Amendment grounds, the over-breadth of the warrant and the absolutely unreasonable scope of the search. I would go further, however, and hold in favor of the appellants as to the so-called yellow sheets and green cards because their seizure, in my opinion, was thoroughly corrupted by the intolerable process under which the search and seizure were conducted. Moreover,. I do not retreat from the Fifth Amendment views originally set forth by me and which were originally endorsed by both Judges Moore and Barnes. I note at the beginning that I see no irreconcilable conflict between my original opinion and our court’s opinion in United States v. Murray, 492 F.2d 178 (9th Cir. 1973). In our case, the flagrant abuse of the search and" }, { "docid": "22163798", "title": "", "text": "Kilgen, 445 F.2d 287, 289 (5th Cir. 1971)). GODBOLD, Circuit Judge, dissenting: I concur in Judge Roney’s dissenting opinion, except the portion relating to the currency violations. FAY, Circuit Judge, with whom GOLDBERG and LEWIS R. MORGAN, Circuit Judges, join, dissenting: Most respectfully, I dissent. It is my belief that the constitutional rights of American citizens have been dealt a severe blow by today’s en banc opinion, and I am somewhat stunned by the cursory treatment this opinion gives to certain sérious constitutional and factual issues. ■ My thoughts as to this case remain the \"same as those expressed in the Court’s initial opinion, 550 F.2d 219 (5th Cir. 1977), but I feel it is necessary to write further in order to bétter explain these thoughts and to point out what I consider to be the serious weaknesses in the Court’s position. A. The Fourth Amendment Problems No one can question that the Coast Guard may stop and search an American vessel on the high seas when it has probable cause to believe a crime has been or is being committed. Prior cases have indicated that such actions are not violative of the Fourth Amendment. See, e. g., United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Maul v. United States, 274 U.S. 501, 47 S.Ct. 735, 71 L.Ed. 1171 (1927). As discussed in the original panel opinion, the Coast Guard may also stop an American vessel on the high seas for the purpose of conducting a safety or documentary inspection. This Court has previously approved of such stoppings, and has also endorsed as a corollary to this proposition that if circumstances arise during the course of a safety inspection that generate probable cause to believe that a violation of United States law has occurred, then the Coast Guard may extend its inquiry, and seize evidence and make arrests if necessary. See United States v. Odom, 526 F.2d 339 (5th Cir. 1976). What is baffling is how a majority of our Court can feel that the facts of this case fall within any of the" }, { "docid": "8424218", "title": "", "text": "This is my judicial philosophy^ — strict construc-tionism, if you please. Before GOLDBERG, CLARK and RONEY, Circuit Judges. PER CURIAM: On petitions for rehearing, we have considered whether our opinion sets any precedent in the law of search and seizure as it applies to so-called exigent circumstances unrelated to the execution of a warrant for arrest. Believing as we do, that all facts must be considered in .determining the reasonableness of a search without a warrant, our holding here is not compartmentalized so as to make any facts unimportant and we voice no opinion whatsoever as to whether we would hold this search reasonable absent the arrest warrant or upon any of the other facts differing from those at bar. The petitions for rehearing are denied. Judge Goldberg would grant the petitions for rehearing for the reasons set forth in his dissent to the panel opinion. No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the petitions for rehearing en banc are denied. . Judge Roney dismisses the factual dispute as to whether the car door was open or shut at the time of the arrest as irrelevant to the disposition of this case. Although I am of the opinion that, on the facts of this arrest, the automobile and its contents were well outside the scope of Frick’s immediate control, regardless of the state of the car door, it is certainly conceivable that the additional barrier of a closed car might be important in the decision of a closer case. . Though the majority does not explicitly rely on it, the passing reference to the fact that the briefcase was in “plain view” of the officers might be taken as an api>eal to that exception to the warrant requirement. However, any such attempt would face two insuperable obstacles. The first was succinctly outlined in Coolidge v. New Hampshire, 1971, 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564. “" } ]

[ { "docid": "2069367", "title": "", "text": "law. is the end.’ Pound, The Etiquette of Justice, 3 Proceedings Neb. St. Bar Assn. 231 (1909). This basic consideration underlies the Rules * * * ” It is against this background and in the spirit of disclaiming “unnecessary niceties” that I would interpret the Supreme Court’s statement in Globe Liquor Co. v. San Roman, 1948, 332 U.S. 571, 573, 68 S.Ct. 246, 247, 92 L.Ed. 177: “We pointed out in the Cone case that Rule 50(b) vested district judges with a discretion, under the circumstances outlined in the rule, to choose between two alternatives: (17 reopening the judgment and granting a new trial, and (2) ordering the entry of judgment as if the losing party’s request for directed verdict had been granted by the trial judge.” See also Johnson v. New York, New Haven & Hartford R. Co., supra, 344 U.S. at page 54, 73 S.Ct. at page 128, note 3; Cone v. West Virginia Pulp & Paper Co., 1947, 330 U.S. 212, 215, 67 S.Ct. 752, 91 L.Ed. 849. I would hold that where there is a motion for judgment n. o. v., timely made in the proper form, with or without a motion for a new trial, the trial court has discretion to grant a new trial where the evidence is contrary to the verdict. A motion for judgment n. o. v. always embraces that ground and that ground, of course, is sufficient to warrant a new trial. It seems to me that the framers of Rule '50(b) intended this construction. Judge Armistead Dobie, a member of the Advisory Committee which drafted the Rules, explained the effect of Rule 50(b) in this manner: “Thus, when a party has moved for a directed verdict and his motion has been denied or not granted (within 10 days after the verdict, or, if no verdict has been returned, within 10 days after the discharge of the jury), he may now move to have the verdict and judgment (when any) set aside and the judgment entered according to his motion, or a similar motion may be made if no verdict was" } ]

[ { "docid": "22306821", "title": "", "text": "motion for judgment n.o.v. Drexel moved, in the alternative, for a new trial, asserting that the jury’s verdict on the § 1981 claim was against the weight of the evidence. Drexel asserts on appeal that the district court granted only the motion for judgment n.o.v., but did not rule on the alternative motion for new trial. It is true that the court’s lengthy opinion addressed only the judgment n.o.v.; however, the relevant accompanying order reads, in pertinent part, “after consideration of defendant’s motion for judgment notwithstanding the verdict or, alternatively, a new trial, and plaintiff’s response thereto, it is hereby ORDERED that the motion is GRANTED.” J.A. at 1304. We read this order as a grant of both motions, with the grant of a new trial plainly conditioned upon a reversal of the judgment n.o.v. This would be in accord with the requirements of Fed.R.Civ.P. 50(c)(1), which states that when a motion for judgment n.o.v. is granted, “the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed.” See 9 C. Wright & A. Miller, Federal Practice & Procedure § 2539, at 609-10 (1971). The consequence of the district court’s alternative ruling is made plain by the rule: “In case the motion for a new trial has been conditionally granted and the judgment [n.o.v.] is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered.” Fed.R.Civ. P. 50(c)(1). We therefore must determine whether we should allow the new trial to proceed, or otherwise order. We make this determination with due regard for our highly deferential scope of review. See American Bearing Co. v. Litton Industries, 729 F.2d 943, 948 (3d Cir.) (“‘The authority to grant a new trial ... is confided almost entirely to the exercise of discretion on the part of the trial court,’ and will only be disturbed if the district court abused that discretion.”) (quoting Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 191, 66 L.Ed.2d 193 (1980)), cert." }, { "docid": "23454019", "title": "", "text": "importantly, in the absence of a Rule 50(b) motion, it is clear this court does not have the power to grant such a judgment. See Johnson v. New York, New Haven & Hartford R.B. Co., 344 U.S. 48, 50, 73 S.Ct. 125, 97 L.Ed. 77 (1952); Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217-18, 67 S.Ct. 752, 91 L.Ed. 849 (1947). As the Supreme Court stated in Cone: The respondent failed to submit a motion for judgment notwithstanding the verdict to the trial judge in order that he might exercise his discretionary power to determine whether there should be such a judgment, a dismissal or a new trial. In the absence of such a motion, we think the appellate court was without power to direct the District Court to enter judgment contrary to the one it had permitted to stand. 330 U.S. at 217-18, 67 S.Ct. 752. (our emphasis). The only motion filed by Flight following the verdict was a motion for a new trial under Rule 59, on the ground that the verdict for liability was against the greater weight of the evidence. This motion was denied by the district court, which found that “[n]o miscarriage of justice will occur if the jury’s liability verdict stands.” Desrosiers v. Mitsubishi Aircraft Int’l, Inc., Nos. 93-5707, 95-5598, (E.D. Calif. May 16, 1997) (Memorandum Opinion and Order Re: Defendants’ Motions for New Trial), at 8; ER at 158. Because Flight failed to make a Rule 50(b) motion, this court has no power to grant, and therefore cannot consider, a judgment as a matter of law. See Johnson, 344 U.S. at 50, 73 S.Ct. 125; Cone, 330 U.S. at 217-18, 67 S.Ct. 752. For this reason, the only issue properly before us regarding causation is the district court’s denial of a motion for a new trial under Rule 59. While we would review de novo a district court’s denial of a motion for judgment as a matter of law, see, e.g., McClaran v. Plastic Indus., Inc., 97 F.3d 347, 354 (9th Cir.1996), this court will not overturn a district" }, { "docid": "22323401", "title": "", "text": "request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment — and may alternatively request a new trial or join a motion for a new trial under Rule 59. In ruling on a renewed motion, the court may: “(1) if a verdict was returned: “(A) allow the judgment to stand, “(B) order a new trial, or “(C) direct entry of judgment as a matter of law ....” . This Court has addressed the implications of a party’s failure to file a postverdict motion under Rule 50(b) on several occasions and in a variety of procedural contexts. This Court has concluded that, “[i]n the absence of such a motion” an “appellate court [is] without power to direct the District Court to enter judgment contrary to the one it had permitted to stand.” Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212, 218 (1947). This Court has similarly concluded that a party’s failure to file a Rule 50(b) motion deprives the appellate court of the power to order the entry of judgment in favor of that party where the district court directed the jury’s verdict, Globe Liquor Co. v. San Roman, 332 U. S. 571 (1948), and where the district court expressly reserved a party’s preverdict motion for a directed verdict and then denied that motion after the verdict was returned, Johnson v. New York, N. H. & H. R. Co., 344 U. S. 48 (1952). A postverdiet motion is necessary because “[djetermination of whether a new trial should be granted or a judgment entered under Rule 50(b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart.” Cone, supra, at 216. Moreover, the “requirement of a timely 'application for judgment after verdict is not an idle motion” because it “is ... an essential part of the rule, firmly grounded in principles of fairness.” Johnson, supra, at 53. The foregoing authorities lead us to reverse the judgment" }, { "docid": "9679913", "title": "", "text": "in the accident were under Diamond M’s control. Consequently, aside from the fact that the Exxon representative did not order or authorize the loading of the tubular drill collars in seas running six to eight feet, Diamond M must cross the legal hurdle that a principal cannot be held answerable for failing to supervise an independent contractor. See McCormick v. Noble Drilling Coup., 608 F.2d 169 (5th Cir. 1979). This has not been done. . In addition to citing Rule 59(d), although recognizing that Diamond M did not join Exxon’s motion — indeed, initially opposed it — the trial judge stated that “at oral argument, Dia mond M joined in the motion for remittitur.” Accordingly, the trial court considered “the motion for new trial or, alternatively, remittitur as having been filed on behalf of Diamond M as well as Exxon.” We cannot accept this reasoning. Diamond M’s attempt to join Exxon’s motion came after the 10 days allowed by Rule 59(b). A party may not belatedly join another litigant’s motion and thereby circumvent the jurisdictional requirements of the rule. . This view is shared by our colleagues in other circuits. See Peterman v. Chicago, Rock Island & Pacific R.R. Co., 493 F.2d 88 (8th Cir. 1974), cert. denied, 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667 (1975); Tsai v. Rosenthal, 297 F.2d 614, 617 (8th Cir. 1961) (“Rule 59(d) has been interpreted by the courts as conferring jurisdiction upon the trial court to act upon its own initiative only during the ten days immediately following the entry of the judgment.”); Jackson v. Wilson Trucking Corp., 243 F.2d 212 (D.C. Cir. 1957); Kanatser v. Chrysler Corp., 199 F.2d 610 (10th Cir. 1952), cert. denied, 344 U.S. 921, 73 S.Ct. 388, 97 L.Ed. 710 (1953). A leading commentator shares the same view. C. Wright, Law of Federal Courts § 95 at 469 (1976). . In addition, with regard to the service agreement struck by Coastal and Golden Meadows, we note that paragraph VII states: Notwithstanding anything to the contrary herein, it is understood that the duties of the crew of the" }, { "docid": "888520", "title": "", "text": "Except for Lapiczak, the foregoing cases arose prior to the 1966 amendment to Fed.R.Civ.P. 59(d), which amendment specifically authorizes a district court, after giving the parties notice and opportunity to be heard on the matter, to “grant a motion for a new trial, timely served, for a reason not stated in the motion.” The 1966 amendment does not change the rule to be applied here for that amendment consti tutes a change in the law granting authority to the trial judge to grant a new trial outside the limitation period for reasons initiated by the court, but only in the event a party has already served a motion for new trial. Lapiczak v. Zaist, supra. As explained in 6A Moore’s Federal Practice 59.01. [1] (1973), referring to the Notes of the Advisory Committee on Rules: Effective July 1, 1966, subdivision (d) was amended to empower the court to grant a motion for a new trial, timely served, by an order made more than 10 days after the entry of judgment, based upon a ground not stated in the motion, as well as grant a new trial on its own initiative within the 10-day period. It is respondent’s theory, however, that its filing of a motion for judgment n. o. v. under Fed.R.Civ.P. 50(b) empowered the court to grant plaintiff a new trial, even though the court found that the movant-railroad was not entitled to judgment in its favor. If a motion for judgment n. o. v. had been sustained, of course, Fed.R. Civ.P. 50(b) explicitly permits the court to “reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.” As the Supreme Court has said in. Cone v. West Virginia Paper Co., 330 U.S. 212, 215, 67 S.Ct. 752, 755, 91 L.Ed. 849 (1947): Rule 50(b) contains no language which absolutely requires a trial court to enter judgment notwithstanding the verdict even though that court is persuaded that it erred in failing to direct a verdict for the losing party. The rule provides that the trial court" }, { "docid": "23454018", "title": "", "text": "procedurally problematic. Under Federal Rule of Civil Procedure 50(a), a defendant may request the trial court to grant a judgment as a matter of law at the close of plaintiffs evidence, or at the close of all of the evidence, if “there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party....” After a jury verdict, the moving party may renew its request for a judgment as a matter of law under Rule 50(b). According to the trial record submitted to this court, Flight did not at any time move for a judgment as a matter of law at the close of the plaintiffs case, or at the close of all the evidence. In order to preserve the right to move for a judgment notwithstanding the verdict under Rule 50(b), a motion under Rule 50(a) first must be made. See, e.g., Pierce v. Southern Pac. Transp. Co., 823 F.2d 1366, 1369 (9th Cir.1987); Farley Transp. Co. v. Santa Fe Transp. Co., 786 F.2d 1342, 1345-46 (9th Cir.1985). However, more importantly, in the absence of a Rule 50(b) motion, it is clear this court does not have the power to grant such a judgment. See Johnson v. New York, New Haven & Hartford R.B. Co., 344 U.S. 48, 50, 73 S.Ct. 125, 97 L.Ed. 77 (1952); Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217-18, 67 S.Ct. 752, 91 L.Ed. 849 (1947). As the Supreme Court stated in Cone: The respondent failed to submit a motion for judgment notwithstanding the verdict to the trial judge in order that he might exercise his discretionary power to determine whether there should be such a judgment, a dismissal or a new trial. In the absence of such a motion, we think the appellate court was without power to direct the District Court to enter judgment contrary to the one it had permitted to stand. 330 U.S. at 217-18, 67 S.Ct. 752. (our emphasis). The only motion filed by Flight following the verdict was a motion for a new trial under Rule 59, on the ground" }, { "docid": "21857345", "title": "", "text": "the trial so that [it] could attempt to meet that burden. A new trial will be granted and [Diamond] will be given an opportunity to do so. Finally, as an additional ground for the new trial, the district court declared the verdict against the weight of the evidence. At the second trial the jury, although instructed that Diamond had to prove an affirmative defense to payment of the draft, found for Diamond, and the Goldsmiths appeal from the judgment entered on that verdict. As a threshold matter we observe that Diamond has not argued before us that, should we find the grant of a new trial improper, it is still entitled to judgment notwithstanding the verdict in the first trial. We may not consider issues not raised on appeal. E.g., Borough v. Duluth, Missabe & Iron Range Railway, 762 F.2d 66, 68 n. 1 (8th Cir.1985); Kizzier Chevrolet Co. v. General Motors Corp., 705 F.2d 322, 325 n. 2 (8th Cir.), cert. denied, — U.S. -, 104 S.Ct. 153, 78 L.Ed.2d 141 (1983). I. The district court in finding authority in Rule 50 of the Federal Rules of Civil Procedure for its grant of a new trial apparently relied upon the language that “[i]f a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.” Fed.R. Civ.P. 50(b). This language, however, by its very terms gives a court discretion to order a new trial absent a motion therefor only where the moving party otherwise would have been entitled to judgment notwithstanding the verdict. Peterman v. Chicago, Rock Island & Pacific Railroad, 493 F.2d 88, 92 (8th Cir.) (citing Jackson v. Wilson Trucking Corp., 243 F.2d 212 (D.C. Cir.1957)), cert. denied, 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667 (1974); see 9 C. Wright & A. Miller, Federal Practice and Procedure § 2538, at 606 (1971). The discretion thus granted is addressed to the protection of the party whose judgment can be set aside" }, { "docid": "888521", "title": "", "text": "stated in the motion, as well as grant a new trial on its own initiative within the 10-day period. It is respondent’s theory, however, that its filing of a motion for judgment n. o. v. under Fed.R.Civ.P. 50(b) empowered the court to grant plaintiff a new trial, even though the court found that the movant-railroad was not entitled to judgment in its favor. If a motion for judgment n. o. v. had been sustained, of course, Fed.R. Civ.P. 50(b) explicitly permits the court to “reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.” As the Supreme Court has said in. Cone v. West Virginia Paper Co., 330 U.S. 212, 215, 67 S.Ct. 752, 755, 91 L.Ed. 849 (1947): Rule 50(b) contains no language which absolutely requires a trial court to enter judgment notwithstanding the verdict even though that court is persuaded that it erred in failing to direct a verdict for the losing party. The rule provides that the trial court “may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.” This “either-or” language means what it seems to mean, namely, that there are circumstances which might lead the trial court to believe that a new trial rather than a final termination of the trial stage of the controversy would better serve the ends of justice. In short, the rule does not compel a trial judge to enter a judgment notwithstanding the verdict instead-of ordering a new trial; it permits him to exercise a discretion to choose between the two alternatives. But by its very terms, Fed.R.Civ.P. 50(b) does not apply where, as here, the court denies the motion for judgment n. o. v. See Jackson v. Wilson Trucking Corp., 100 U.S.App.D.C. 106, 243 F.2d 212 (1957). Nevertheless, respondent continues, some courts and commentators have suggested that under Fed.R.Civ.P. 50(b), the trial court should be permitted to grant a new trial if the weight of the evidence is against the verdict although" }, { "docid": "22888127", "title": "", "text": "reviewable as a final judgment when the challenge goes to the judicial power of the court to take that action. Apparently the Supreme Court viewed the immediate appeal as appropriate because the inquiry was in essence whether the original judgment remained in legal contemplation an effective and enforceable final order. But however doubtful the rationale of Phillips v. Negley may be, courts of appeals have repeatedly recognized its authority and applied its holding in reviewing new trial orders challenged as beyond the trial court’s jurisdiction. Jackson v. Wilson Trucking Corp., 1957, 100 U.S.App.D.C. 106, 243 F.2d 212; Untersinger v. United States, 2d Cir. 1950, 181 F.2d 953; Tsai v. Rosenthal, 8th Cir. 1961, 297 F.2d 614; Gilliland v. Lyons, 9th Cir. 1960, 278 F.2d 56; see Kanatzer v. Chrysler Corp., 10th Cir. 1952, 199 F.2d 610, 615-16, cert. denied, 1953, 344 U.S. 921, 73 S.Ct. 388, 97 L.Ed. 710. Accordingly, we are constrained to hold that we have authority under Section 1291 at this time to inquire into the power of the court below to issue its order granting a new trial. We have no doubt that the rule which generally denies an immediate appeal from an order granting a new trial is salutary. We merely recognize that Phillips v. Negley has created one narrow, perhaps anomalous, exception to this rule. 307 F.2d at 471—72. Accord, Harkins v. Ford Motor Co., 437 F.2d 276 (3d Cir. 1970). See Peterman v. Chicago, Rock Island and Pacific Railroad Co., 493 F.2d 88 (8th Cir.), cert. denied, 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667 (1974), Wiggs v. Courshon, 485 F.2d 1281 (5th Cir. 1973). Since the thrust of Cortez’s argument is that the district court had no jurisdiction to grant a new trial under the circumstances of this case, we are satisfied that we have appellate jurisdiction to review the May 10, 1974 order which granted Stradley a new trial. Unfortunately, as we indicated, note 2 supra, the plaintiff did not designate the particular Federal Rule of Civil Procedure under which he sought relief. His delinquency in this regard requires us" }, { "docid": "2928460", "title": "", "text": "friction when requesting bids for slide bearings for use in baghouses and precipitators. Litton’s evidence showed that bearings other than Teflon-coated bearings were used in precipitators and bag-houses and that bearing manufacturers other than Litton supplied bearings for some precipitators and baghouses. Moreover, Litton presented evidence that American’s bids were rejected, on at least two occasions, either because American’s bearings failed to meet specifications or because American failed to supply independently prepared test reports certifying its testing procedures and facilities. . Plaintiff argues that the district court may only grant a new trial under Rule 50(b) when the moving party would be entitled to judgment notwithstanding the verdict. According to plaintiff, if the jury verdict is supported by enough evidence so that judgment n.o.v. would not be warranted, the district court would be powerless to grant a new trial under Rule 50(b). See, e.g., Peterman v. Chicago, Rock Island & Pacific Railroad Co., 493 F.2d 88, 92 (8th Cir.1974) (district court precluded from granting new trial under Rule 50(b) when it denies judgment n.o.v.). Plaintiffs reliance on Peterman, however, is misplaced. The rule announced in Peterman only applies when the verdict loser fails to move in the alternative for a new trial. See 9 C. Wright & A. Miller, supra, at § 2538 (if motion for judgment n.o.v. \"must be denied, the court has no power to order a new trial in favor of the moving party ... unless a motion for a new trial has been joined in the alternative with the motion for judgment”). The district court’s denial of the judgment n.o.v. motion, therefore, is not relevant when the moving party makes the alternative new trial motion. . Section 4 provides, in part: “(a) Except as provided in subsection (b) of this section, any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall" }, { "docid": "6317834", "title": "", "text": "F.2d 1000, 1001-1002 (8th Cir. 1965). Since the notice of appeal was filed within 30 days of the denial of relief under rule 60, we have jurisdiction to review that denial even though we do not have jurisdiction to review the summary judgment. Bruton v. Shank, 349 F.2d 630, 631 (8th Cir. 1965). We find that Judge McManus did not abuse his discretion in denying plaintiff relief under Fed.R.Civ.P. 60(b). We first note that this is not a case where plaintiff has been denied a decision on the merits. Furthermore, appellant’s counsel admits that he was aware of the motion for summary judgment, but neglected to file a resistance because he was busy with other matters. Ignorance or carelessness of an attorney is generally not cognizable under Fed.R. Civ.P. 60(b). Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir. 1969); United States v. Thompson, 438 F.2d 254, 256 (8th Cir. 1971). Finally, we agree with the trial judge’s conclusion that appellant’s proposed resistance filed with the 60(b) motion fails to raise any new issue of material fact not previously con sidered in disposing of the motion for summary judgment. Under these circumstances we can find no abuse of discretion in the October 11, 1974, order of Judge McManus. The appeal from the summary judgment entered September 13, 1974, is dismissed for want of jurisdiction. The order of October 11, 1974, is affirmed. . Our conclusion in Peterman v. Chicago, Rock Island & Pacific R. R., 516 F.2d 328 (8th Cir., 1975), is not to the contrary. In that case the trial court sua sponte and erroneously granted a new trial to the railroad; therefore the railroad did not appeal denial of its motion for judgment n. o. v. This Court determined that the trial court was without jurisdiction to enter the order and vacated the new trial order. Peterman v. Chicago, Rock Island & Pacific R. R., 493 F.2d 88, 93 (8th Cir.), cert. denied, 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667 (1974). Judgment was thereupon entered in district court and the railroad appealed within 30 days of" }, { "docid": "22092534", "title": "", "text": "the weight of the evidence. More than two months later this motion was denied; in the same order denying that motion the court also denied the pre-verdict motions for dismissal and for a directed verdict on which action had been reserved prior to verdict. Holding that the motion for a directed verdict should have been granted, the Court of Appeals reversed. 194 F. 2d 194. Both parties agree that this reversal requires the District Court to enter judgment for the railroad notwithstanding the verdict, thereby depriving petitioner of another trial. Whether the Court of Appeals could direct such a judgment consistently with Rule 50 (b) of the Federal Rules of Civil Procedure is the single question we granted certiorari to review. 343 U. S. 975. On several recent occasions we have considered Rule 50 (b). We have said that in the absence of a motion for judgment notwithstanding the verdict made in the trial court within ten days after reception of a verdict the rule forbids the trial judge or an appellate court to enter such a judgment. Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212. We repeated that construction of the rule in Globe Liquor Co. v. San Roman, 332 U. S. 571, and reemphasized it in Fountain v. Filson, 336 U. S. 681. Although this respondent made several motions it did not as the rule requires move within ten days after verdict “to have judgment entered in accordance with his [its] motion for a directed verdict.” We are told, however, in respondent’s brief that its motion to set aside the verdict “was intended to be a motion for judgment in its favor or for a new trial” and that “[o]bviously respondent did not merely want the verdict to be set aside but wanted the relief that invariably follows such a setting aside on the grounds urged: a judgment in its favor or a new trial.” The defect in this argument is that respondent’s motions cannot be measured by its unexpressed intention or wants. Neither the trial judge nor the Court of Appeals appears'to have" }, { "docid": "22452916", "title": "", "text": "the law requires a particular result.” 9A C. Wright & A. Miller, Federal Practice and Procedure § 2521, p. 240 (2d ed. 1995) (hereinafter Wright & Miller). Subdivision (d) controls when, as here, the verdict loser appeals from the trial court’s denial of a motion for judgment as a matter of law: “[T]he party who prevailed on that motion may, as ap-pellee, assert grounds entitling the party to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment. If the appellate court reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.” Under this Rule, Weisgram urges, when a court of appeals determines that a jury verdict cannot be sustained due to an error in the admission of evidence, the appellate court may not order the entry of judgment for the verdict loser, but must instead remand the case to the trial court for a new trial determination. Brief for Petitioner 20, 22; Reply Brief 1, 17. Nothing in Rule 50 expressly addresses this question. In a series of pre-1967 decisions, this Court refrained from deciding the question, while emphasizing the importance of giving the party deprived of a verdict the opportunity to invoke the discretion of the trial judge to grant a new trial. See Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212, 216-218 (1947); Globe Liquor Co. v. San Roman, 332 U. S. 571, 573-574 (1948); Johnson v. New York, N. H. & H. R. Co., 344 U. S. 48, 54, n. 3 (1952); see also 9A Wright & Miller § 2540, at 370. Then, in Neely, the Court reviewed its prior jurisprudence and ruled definitively that if a motion for judgment as a matter of law is erroneously denied by the district court, the appellate court does have the power to order the entry of judgment for the moving party. 386 U. S., at 326; see also" }, { "docid": "21857346", "title": "", "text": "district court in finding authority in Rule 50 of the Federal Rules of Civil Procedure for its grant of a new trial apparently relied upon the language that “[i]f a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.” Fed.R. Civ.P. 50(b). This language, however, by its very terms gives a court discretion to order a new trial absent a motion therefor only where the moving party otherwise would have been entitled to judgment notwithstanding the verdict. Peterman v. Chicago, Rock Island & Pacific Railroad, 493 F.2d 88, 92 (8th Cir.) (citing Jackson v. Wilson Trucking Corp., 243 F.2d 212 (D.C. Cir.1957)), cert. denied, 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667 (1974); see 9 C. Wright & A. Miller, Federal Practice and Procedure § 2538, at 606 (1971). The discretion thus granted is addressed to the protection of the party whose judgment can be set aside to allow that the failure of proof, when only technical or when caused by error of the court or change in the law, be corrected. E.g., Lucas Hoist & Equipment Co. v. Eaton Corp., 76 F.R.D. 661 (W.D.Pa.1977) (when law on burden of proof was overruled during pendency of posttrial motions such that defendant became entitled to judgment notwithstanding the verdict, district court had authority instead to order new trial to allow plaintiff the opportunity to meet new burden).I. * When, as here, the district court believes the moving party not entitled to judgment notwithstanding the verdict, respect for the role of the jury requires strict compliance with the limits established in the Federal Rules of Civil Procedure as to when and why such a verdict otherwise may be disturbed. Jackson, 243 F.2d at 217. Thus, we have held that a district court in such circumstances lacks the power to grant a new trial unless it acts on the basis of a motion of a party pursuant to Rule 59(b) of the Federal Rules of" }, { "docid": "21857348", "title": "", "text": "Civil Procedure or sua sponte within ten days pursuant to Rule 59(d) of the Federal Rules of Civil Procedure. Peterman, 493 F.2d at 91; see 9 C. Wright & A. Miller, supra, at 606-07. Neither avenue was available to the district court in this case. Diamond suggests two courses by which we might avoid this result. First, Diamond urges that we adopt the argument of Chief Justice (then Judge) Burger in his dissent in Jackson, 243 F.2d at 217, that a party moving only for judgment notwithstanding the verdict and found not entitled thereto may still be granted a new trial on the basis that the verdict was against the weight of the evidence. See 5A J. Moore & J. Lucas, Moore’s Federal Practice 1150.11, at 50-99 & n. 8 (1985). While we found it unnecessary to reach this argument in Peterman because the new trial order there was based only on instructional error and not, as here, on weight of the evidence in the alternative, see 493 F.2d at 93, we observe that then Judge Burger’s position has been rejected by two other circuits, Kain v. Winslow Manufacturing, 736 F.2d 606, 608-09 (10th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1360, 84 L.Ed.2d 381 (1985); Alderman v. Tandy Corp., 720 F.2d 1234, 1236-37 (11th Cir.1983), and by a prominent treatise, 9 C. Wright & A. Miller, supra, at 607 n. 8, as well as by the majority in Jackson, supra. Diamond cites no case decided in conformity with the rule it urges, and we decline to extend the requested authority to the district court here. Second, Diamond argues that the court in this case could properly have granted a new trial sua sponte, even though it acted more than six weeks after the jury returned its verdict, because judgment was never actually entered so as to trigger the ten-day limitation of Rule 59(d). This argument is unpersuasive for two reasons. First, the district court was specific in granting the motion on the authority of Rule 50(b). Had the court intended to base its authority on Rule 59(d), we" }, { "docid": "15974842", "title": "", "text": "of $500,000.00 for Mrs. Rodgers. Within ten days after entry of judgment, Tosco filed a Motion for Relief from Judgment under Rule 60(b), a Motion for New Trial under Rule 59, and a Motion for Judgment Notwithstanding the Verdict pursuant to Rule 50(b) of the Federal Rules of Civil Procedure. The parties filed affidavits and briefs in support of their positions on these motions, and on August 22, 1980 the district court ordered a remittitur to $1,312,762.17 for Rodgers and $250,000.00 for Mrs. Rodgers, or in the alternative a new trial. Appellants’ petition to the district court for review of that order was denied, and a petition for Writ of Mandamus to this court was also denied. Appellants elected to take a new trial rather than consent to a total award of $1,562,762.17. At the conclusion of the second trial, however, the jury returned a verdict in favor of Tosco, and the complaint was dismissed with prejudice. This appeal is both from the remittitur order and from the judgment following new trial. I. THE A UGUST 22 ORDER A. THE APPLICABLE STANDARDS It is settled law in this circuit that the district court, in considering a motion for new trial, must set aside a jury verdict where it has determined that the verdict is against the clear weight of the evidence, Fireman’s Fund Ins. Co. v. Aalco Wrecking Co., 466 F.2d 179, 186 (8th Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1371, 35 L.Ed.2d 592 (1973), that it is the result of passion or prejudice, id.; Mueller v. Hubbard Milling Co., 573 F.2d 1029, 1039-40 (8th Cir.), cert. denied, 439 U.S. 865, 99 S.Ct. 189, 58 L.Ed.2d 174 (1978), or that the verdict is clearly excessive. Slatton v. Martin K. Eby Constr. Co., Inc., 506 F.2d 505, 508 (8th Cir. 1974), cert. denied, 421 U.S. 931, 95 S.Ct. 1657, 44 L.Ed.2d 88 (1975). Furthermore, the district court, in passing on such motions, is not required to view the evidence in the light most favorable to the non-movant; rather, “[i]t may weigh the evidence, disbelieve witnesses, and grant a" }, { "docid": "21857347", "title": "", "text": "to allow that the failure of proof, when only technical or when caused by error of the court or change in the law, be corrected. E.g., Lucas Hoist & Equipment Co. v. Eaton Corp., 76 F.R.D. 661 (W.D.Pa.1977) (when law on burden of proof was overruled during pendency of posttrial motions such that defendant became entitled to judgment notwithstanding the verdict, district court had authority instead to order new trial to allow plaintiff the opportunity to meet new burden).I. * When, as here, the district court believes the moving party not entitled to judgment notwithstanding the verdict, respect for the role of the jury requires strict compliance with the limits established in the Federal Rules of Civil Procedure as to when and why such a verdict otherwise may be disturbed. Jackson, 243 F.2d at 217. Thus, we have held that a district court in such circumstances lacks the power to grant a new trial unless it acts on the basis of a motion of a party pursuant to Rule 59(b) of the Federal Rules of Civil Procedure or sua sponte within ten days pursuant to Rule 59(d) of the Federal Rules of Civil Procedure. Peterman, 493 F.2d at 91; see 9 C. Wright & A. Miller, supra, at 606-07. Neither avenue was available to the district court in this case. Diamond suggests two courses by which we might avoid this result. First, Diamond urges that we adopt the argument of Chief Justice (then Judge) Burger in his dissent in Jackson, 243 F.2d at 217, that a party moving only for judgment notwithstanding the verdict and found not entitled thereto may still be granted a new trial on the basis that the verdict was against the weight of the evidence. See 5A J. Moore & J. Lucas, Moore’s Federal Practice 1150.11, at 50-99 & n. 8 (1985). While we found it unnecessary to reach this argument in Peterman because the new trial order there was based only on instructional error and not, as here, on weight of the evidence in the alternative, see 493 F.2d at 93, we observe that then" }, { "docid": "2069369", "title": "", "text": "returned. The court may now, on such motion, either direct the entry of the judgment as asked, or may grant a new trial.” (Emphasis added.) The Advisory Committee on Rules for Civil Procedure, in 1946, responded to a suggestion that the prevailing party be allowed to make a “conditional” motion for new trial when the losing party moved for judgment n. o. v.: “This suggestion is based on the erroneous assumption that the party winning the verdict must be allowed to make such a conditional motion in order to make a showing that if his verdict is set aside, he should at least have another chance at a sec ond trial to supply the deficiencies in his proof. A trial court or an appellate court in setting aside a verdict always has discretion, if justice requires it, to order a new trial, instead of directing the entry of judgment. Rule 50(b) states that the court on a motion for judgment notwithstanding the verdict ‘may either order a new trial or direct the entry of judgment’ for the moving party. A party resisting a motion for judgment [n. o. v.] * * * may do that without making a conditional motion for new trial.” (Emphasis added.) Committee Note of 1946 to proposed but unadopted amendment of Rule 50(b) 1946 U.S.Code Cong.Serv. p. 2352, 79th Cong., 2d Sess. The majority opinion cites (supra 243 F.2d 215) a statement by Mr. William D. Mitchell, Chairman of the Advisory Committee. I do not agree that Mr. Mitchell supports their position that the trial court must find the motion for judgment n. o. v. is well grounded before being able to grant a new trial on that motion. The phrase “* * * even though he thinks the original motion for a directed verdict should have been granted” is not a limitation on the trial court’s power, but on the contrary an indication of the latitude of its discretion. As later stated in Cone v. West Virginia Pulp & Paper Co., supra, 330 U.S. at page 215, 67 S.Ct. at page 754, “Rule 50(b) contains" }, { "docid": "22888128", "title": "", "text": "issue its order granting a new trial. We have no doubt that the rule which generally denies an immediate appeal from an order granting a new trial is salutary. We merely recognize that Phillips v. Negley has created one narrow, perhaps anomalous, exception to this rule. 307 F.2d at 471—72. Accord, Harkins v. Ford Motor Co., 437 F.2d 276 (3d Cir. 1970). See Peterman v. Chicago, Rock Island and Pacific Railroad Co., 493 F.2d 88 (8th Cir.), cert. denied, 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667 (1974), Wiggs v. Courshon, 485 F.2d 1281 (5th Cir. 1973). Since the thrust of Cortez’s argument is that the district court had no jurisdiction to grant a new trial under the circumstances of this case, we are satisfied that we have appellate jurisdiction to review the May 10, 1974 order which granted Stradley a new trial. Unfortunately, as we indicated, note 2 supra, the plaintiff did not designate the particular Federal Rule of Civil Procedure under which he sought relief. His delinquency in this regard requires us to analyze the propriety of the district court’s order under all sections of Fed.R. Civ.P. 59 and 60. While we have decided to undertake such additional labors in this case, our decision to do so should not be construed as either approving or condoning this practice. We make no commitment as to our actions in the future when faced with such ambiguity regarding the Rule upon which a motion is based. III. RULE 59 Fed.R.Civ.P. 59 governs the grant of a new trial, either on the motion of a party or on the initiative of the court. Rule 59 provides in relevant part: Rule 59. New Trials; Amendments of Judgments * * * * * * (b) Time for Motion. A motion for a new trial shall be served not later than 10 days after the entry of the judgment. •* * * * * * (d) On Initiative of Court. Not later than 10 days after entry of judgment the court of its own initiative may order a new trial for any reason for" }, { "docid": "6317835", "title": "", "text": "material fact not previously con sidered in disposing of the motion for summary judgment. Under these circumstances we can find no abuse of discretion in the October 11, 1974, order of Judge McManus. The appeal from the summary judgment entered September 13, 1974, is dismissed for want of jurisdiction. The order of October 11, 1974, is affirmed. . Our conclusion in Peterman v. Chicago, Rock Island & Pacific R. R., 516 F.2d 328 (8th Cir., 1975), is not to the contrary. In that case the trial court sua sponte and erroneously granted a new trial to the railroad; therefore the railroad did not appeal denial of its motion for judgment n. o. v. This Court determined that the trial court was without jurisdiction to enter the order and vacated the new trial order. Peterman v. Chicago, Rock Island & Pacific R. R., 493 F.2d 88, 93 (8th Cir.), cert. denied, 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667 (1974). Judgment was thereupon entered in district court and the railroad appealed within 30 days of entry of judgment. Therefore we held that we had jurisdiction to hear the appeal. The unusual situation in Peterman has no analogy here. . The Notice of Appeal reads in part: Notice is hereby given that Joan Cline, plaintiff, hereby appeals to the United States Court of Appeals for the Eighth Circuit from the judgment rendered in this action dated September 16, 1974, wherein plaintiffs action was dismissed. See attached copy of the judgment entered by the Court and the Order of the Court filed October 11, 1974 denying all motions. The judgment was actually entered on the civil docket on September 13, 1974, which was the date the court’s order was filed. The clerk of the court filed a summary judgment pursuant to the order on September 16; however, the date of the entry into the civil docket is determinative of when the time for motions and appeal begins to run. 6A J. Moore, Moore’s Federal Practice 58-56 — 58-57 (2d ed. 1974)." } ]

[ { "docid": "4364160", "title": "", "text": "for legal malpractice against Cush is barred by prescription. Article 2985 of the Louisiana Civil Code provides: A mandate, procuration, or letter of attorney is an act by which one person gives power to another to transact for him and in his name, one or several affairs. Under Louisiana law, the relationship of mandate has become equated with the common law principal-agent relationship. Yiannopoulos, Brokerage, Mandate, and Agency in Louisiana: Civilian Tradition and Modern Practice, 19 La.L.Rev. 777, 795 (1959). A mandatary may be responsible to the principal for damages resulting from non-performance of his duty, unfaithfulness, fault or neglect. An action for breach of fiduciary duty is a personal action with a ten year prescriptive period. La.Civ.Code art. 3499. A fiduciary relationship has been described as follows: The dominant characteristic of a fiduciary relationship is the confidence reposed by one in the other and [a person] occupying such a relationship can not further his own interests and enjoy the fruits of an advantage taken of such relationship. He must make a full disclosure of all material facts surrounding the transac tion that might affect the decision of his principals. Plaquemines Parish Commission Council v. Delta Development Co., 502 So.2d 1034, 1040 (La.1987) (quoting Anderson v. Thacher, 76 Cal.App.2d 50, 172 P.2d 533, 543 (1946)). The duty of loyalty which results from the position of trust distinguishes the fiduciary relationship. A cause of action for breach of fiduciary duty requires proof of fraud, breach of trust, or an action outside the limits of the fiduciary’s authority. Crabtree Investments, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 577 F.Supp. 1466 (M.D.La.1984), aff’d without opinion, Crabtree Investments v. Merrill Lynch, 738 F.2d 434 (5th Cir.1984). While a mandatary is a fiduciary, it does not necessarily follow that every action against a mandatary is subject to the ten year prescriptive period. For example, because lawyers appear in a representative capacity, a general contract between an attorney and client is often considered a mandate under Louisiana law. Board of Commissioners v. Commission on Ethics for Public Employees, 457 So.2d 802 (La.App. 1st Cir.1984);" } ]

[ { "docid": "17142612", "title": "", "text": "nor Eggleston were credible. Contrary to Wyshak’s assertions, the acts of which Wyshak complains were merely routine trial administration efforts and ordinary admonishments, and do not display any deep-seated antagonism. The court decided against a continuance because Wyshak’s difficulties in obeying the court’s rules had already substantially delayed trial; nevertheless, in recognition of Wyshak’s physical condition, the court allowed Wyshak to sit while addressing the court and interviewing witnesses, and allowed him to take breaks whenever requested. Despite Wyshak’s failure to follow the court’s scheduling order, the court allowed Wyshak to file findings of fact and conclusions of law on the date of the trial and allowed Wyshak to have a continuing objection. In conclusion, the district court’s impartiality could not reasonably be questioned, and the district court’s judgment that Wyshak and Robert H. Wyshak & Associates are liable to TCL for damages under Louisiana law and for securities fraud under 17 C.F.R. § 240.10b-5 is AFFIRMED. . We express no opinion on whether the factors ■ discussed in Cates (and those discussed here) serve as the only factors, or as necessary factors, for determining whether a party has intended to appeal all orders which form the basis of a final judgment.' . Section 78aa. provides in part: \"Any suit or - action to enforce tiny liability or duty created by this title ... may be brought in any such district ... and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found.\" . A contracting party may stipulate a benefit for a third person called a third party beneficiary, and once the third party has manifested his intention to avail himself of the benefit, the parties may not dissolve the contract without the beneficiary’s agreement. La.Civ.Code art. 1978. Such a contract is known as a third party beneficiary contract, or a stipulation pour autrui. The stipulation gives the third party beneficiary as well as the stipulator the right to demand performance from the promisor. La.Civ.Code art. 1981." }, { "docid": "8040893", "title": "", "text": "at present, employed as a manual laborer in New Mexico. . The court awarded damages to the Goch-nauers only for the losses incurred during the first year of the contract, $22,026.00. The court concluded that, when the Gochnauers renewed the contract for the second year without first requiring Kerr to satisfy his contractual obligation of providing the 15% guaranteed return, the Gochnauers ratified and renewed the agreement with full knowledge that the contract had not been fulfilled. Consequently, the Court found the breach of fiduciary duty by appellees went only to the initial contract term of one year. Judgment was also entered against Kerr for the entire loss on the contract, $49,943.82, although Kerr was jointly and severally liable with Lester, Roach and A.G. Edwards for the $22,026.00. . Section 10(b) of the Securities Exchange Act of 1934 (15 U.S.C. § 78j) reads, in pertinent part: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— (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. . The rule was promulgated by the Securities and Exchange Commission in 1942. 17 C.F.R. § 240.10b-5 (1977). The rule states: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any" }, { "docid": "17142584", "title": "", "text": "Inc. [sic], which has in turn, granted a security interest in the GNMA Assets to the Trust Company of Louisiana and has filed the UCC-1 Financing Statements attached hereto as Exhibit “B” recording the secured interest of the Trust Company of Louisiana. The Law Firm as Custodian will maintain the GNMA Assets in it’s [sic] Vault Depository Account and pursuant to the irrevocable instructions of Mr; Larry Leal on behalf of L.C.E. International, Inc. and N.N.P., Inc. and the UCC-1 Financing Statements, the Law Firm as Custodian has recorded by book entry in its books and records, the secured interest of the Trust Company of Louisiana in the GNMA Assets. Henceforth, the Law Firm will not allow the GNMA Assets to be assigned, hypothe-cated, sold or transferred until the Law Firm as Custodian receives from the Trust Company of Louisiana, either a written release of the secured interest or written instructions as to the directed disposition of the GNMA Assets pursuant to a default under the agreements and documents which are the subject of the secured interest. Should you have any questions, please do not hesitate to contact Robert Wyshak at the Trust Services Department of the Palm Springs Office. Yours truly, LAW OFFICES OF ROBERT H. WYS-HAK & ASSOCIATES, LTD. [Signature] Jamieson testified that Wyshak agreed to send the letter to TCL conditionally on receipt of a custodial fee of $35,000. On the following day, January 31, 1991, Leal faxed to Wyshak and Eggleston a photocopy of a cashier’s check in the amount of $35,000 made out to Prudential Bache Securities and deposited in Fidelity Asset Management’s account. The cheek noted that it was for Wyshak’s custodial fee. In April, May, and June 1991, NNP failed to make the required monthly interest payments on both notes. On July 1,1991, TCL notified NNP and LCE of NNP’s default. TCL instructed Wyshak to sell the GNMAs pursuant to the security agreement, and Wyshak then informed TCL that he did not hold the GNMAs. TCL filed suit in August, 1991. In its Memorandum Ruling and Judgment filed February 23, 1995, the district" }, { "docid": "17142581", "title": "", "text": "Asset’s books and could not trace the true ownership of the GNMAs listed as assets, the commission put the company into receivership. Jamieson testified that he received a phone call from Eggleston after an FBI agent had seized Eggleston’s briefcase at Wyshak’s office with Wyshak present in connection with a different transaction involving a purported and unverifiable security interest in the same GNMAs, yet Wyshak continued to participate in deals involving Reliance and the GNMAs, including the instant representation to TCL that he was holding the GNMAs on assignment for them. The TCL transaction closed on June 26, 1990. Jamieson testified that Eggleston at least was aware of the transaction. Moreover, letters indicated that Wyshak was undoubtedly aware of the transaction as well. On June 26,1990, Reliance sent a copy of the custodial agreement to Wyshak, requesting that Wyshak execute it and return it to TCL. Additionally, Eggleston received a letter dated June 25, 1990, from Jamieson, stating: Concerning the transaction with LCE (Larry Leal). If you would, please have Mr. Wyshak execute two custodial agreements and return to me. There will be a call in this from Mr. Jimmy Crank of the Trust Co. of Louisiana, Trust Department of the Ruston State Bank of Ruston, Louisiana [TCL], on the Standard Verification of Assets, Etc. His main concern is the time frame of liquidation in ease of a default, so if you could word this right to him I think he will relax. Jamieson testified that Wyshak had agreed to act as custodian in return for “custodial fees” in the amount of a certain percentage of the amount of each loan. As time went on, Reliance became impatient with paying the custodial fees and did not inform Wyshak of a number of transactions. Wyshak became aware that he was not getting custodial fees. After a series of increasingly unpleasant let ters, the parties agreed to break off the arrangement. In December, 1990, Wyshak even sent a letter to Jamieson in which he declared that his firm had evidence that Reliance’s transactions were fraudulent. Shortly thereafter, in January, 1991, TCL became" }, { "docid": "17142582", "title": "", "text": "agreements and return to me. There will be a call in this from Mr. Jimmy Crank of the Trust Co. of Louisiana, Trust Department of the Ruston State Bank of Ruston, Louisiana [TCL], on the Standard Verification of Assets, Etc. His main concern is the time frame of liquidation in ease of a default, so if you could word this right to him I think he will relax. Jamieson testified that Wyshak had agreed to act as custodian in return for “custodial fees” in the amount of a certain percentage of the amount of each loan. As time went on, Reliance became impatient with paying the custodial fees and did not inform Wyshak of a number of transactions. Wyshak became aware that he was not getting custodial fees. After a series of increasingly unpleasant let ters, the parties agreed to break off the arrangement. In December, 1990, Wyshak even sent a letter to Jamieson in which he declared that his firm had evidence that Reliance’s transactions were fraudulent. Shortly thereafter, in January, 1991, TCL became concerned about the security of its loan, and wanted reassurance from Wyshak. Reliance did not want to jeopardize this very large transaction, and renegotiated with Wyshak. On January 30, 1991, Wyshak faxed the following letter to TCL as well as to the ostensible head of L.C.E., Inc.: Dear Mr. Leal: This letter is to confirm that our Law Firm as custodian pursuant to the Contribution Agreement and Custodian Agreement has previously received delivery of the Assignment of GNMA Securities, assigning all legal'right, title and interest, in and to, the GNMA Securities described in Exhibit “A” attached and incorporated herein by reference, collectively referred to herein as the “GNMA Assets”, [sic] In addition, this Law Firm has received confirmation and verification that the GNMA Assets were not purchased on margin, are not subject 'to any liens or encumbrances, and that L.C.E. Inc., is now holder in due course of the GNMA Assets. The Law Firm has been advised that L.C.E. International Inc. has transferred its interest in the GNMA Assets to its wholly owned subsidiary, .N.P." }, { "docid": "17142595", "title": "", "text": "Although the appellants contended on appeal that they were not properly served, they nonetheless participated in some of the trial court proceedings. We rejected the appellants’ eleventh-hour contention that the district court lacked personal jurisdiction, reasoning that “[t]he Federal Rules do not in any way suggest that a defendant may halfway appear in a case, giving plaintiff and the court the impression that he has been served, and, at the appropriate time, pull failure of service out of the hat like a rabbit in order to escape default judgment.” Id. at 281. We find that the reasoning in Broadcast Music applies with equal force here. Wys-hak participated in the entire trial, yet nothing in the record suggests that Wyshak raised the issue of nonissuance of a summons in the district court. In fact, as to the amended complaints, Wyshak never objected to the sufficiency of service of process until his motion for rehearing before this Court. We therefore conclude that Wyshak has waived any objection to the sufficiency of service of process of the amended complaints. Misrepresentation Wyshak argues that his law firm owed no duty to TCL under the laws of either Louisiana or California. He asserts that he and his firm were not part of the conspiracy to defraud promulgated by other defendants, that they did not make any representations whatsoever to TCL prior to funding, and that his letter to TCL did not constitute a legal opinion as to the proper method of perfecting a security interest in GNMAs. Under Louisiana law, the elements of a claim for negligent misrepresentation are: (1) the existence of a legal duty on the part of the defendant to supply correct information or to refrain from supplying incorrect information; (2) breach of that duty, and (3) damages caused to the plaintiff as a result of that breach. Barrie v. V.P. Exterminators, 625 So.2d 1007, 1015 (La.1993). In order for an attorney to have a legal duty to supply correct information so that he is liable to a non-client for malpractice, the plaintiff must show that the attorney provided legal services and" }, { "docid": "17142586", "title": "", "text": "court specifically found that Wyshak and Eggle-ston were not credible. The court found that Wyshak and Eggleston had drafted deliberately misleading documents implying that the “assets” in the law firm’s custody were GNMAs rather than assignments of GNMAs. The court also found that other documents created the appearance that Wyshak and Eg-gleston and the firm had been duly diligent in verifying the existence and pedigree of the GNMAs when in fact Wyshak had neither the GNMAs nor the assignments of them, nor did he even know how to perfect such an assignment. The court found that Wyshak and Eggleston were liable under Federal Securities law and Louisiana Securities Law for the damages done to TCL. The court also found that they were liable under Louisiana Civil Code art. 1953 (fraud), and that they were liable for negligent misrepresentation, breach of contract, and breach of fiduciary duty under Louisiana law. Wyshak, Wyshak & Associates, and Eggle-ston gave notice of appeal from the district court’s Memorandum Ruling and Judgment, as well as from the grant of costs and fees that the court subsequently granted to TCL. Eggleston’s brief was stricken for failure to comply with Local Rule 28, and his appeal was dismissed for failure to prosecute pursuant to Local Fifth Circuit Rule 42.3.3. . DISCUSSION Standard of Review Findings of fact are reviewed under a clearly erroneous standard, and conclusions of law are viewed de novo. Fiberlok, Inc., v. LMS Enterprises, Inc., 976 F.2d 958, 962 (5th Cir.1992). Deference is given to the district court’s assessment of the credibility of witnesses and a finding of fact in that regard will not be overturned unless manifest eiTor appears in the record. Real Asset Management, Inc., v. Lloyd’s of London, 61 F.3d 1223 (5th Cir.1995). Issues on Appeal While Wyshak listed ten issues, he discusses only four of them in the corpus of his brief, arguing that the 50 page limit of Local Rule 28 did not allow him room to brief the other issues. At the outset it must be noted that Wyshak’s presentation of the facts of his case takes up" }, { "docid": "17142580", "title": "", "text": "purported owner of the GNMA’s at issue. Jamieson and the other principal perpetrators of the scheme secured the services of an actress who told Wyshak that she was Rosa Kant, a Panamanian citizen who represented some leaders in Central and South America and who wanted their monies invested secretly and confidentially. No evidence was presented to indicate that Wyshak further investigated this story that the money used to purchase the GNMAs was laundered drug money from out of the country, nor was evidence presented to indicate that he ever actually asked to see the GNMA certificates allegedly owned by the fictitious Rosa Kant. Further acts established that Wyshak knew or should have known that the perpetrators did not in fact own the GNMAs in question. Wyshak and Eggleston listed some of the GNMAs as assets of Fidelity Asset Insurance, an insurance company of which they were trying to gain ownership. In connection with this endeavor, Eggleston had Jamieson pose as an officer of- Fidelity Asset Management. When the Utah Insurance Commission began to investigate Fidelity Asset’s books and could not trace the true ownership of the GNMAs listed as assets, the commission put the company into receivership. Jamieson testified that he received a phone call from Eggleston after an FBI agent had seized Eggleston’s briefcase at Wyshak’s office with Wyshak present in connection with a different transaction involving a purported and unverifiable security interest in the same GNMAs, yet Wyshak continued to participate in deals involving Reliance and the GNMAs, including the instant representation to TCL that he was holding the GNMAs on assignment for them. The TCL transaction closed on June 26, 1990. Jamieson testified that Eggleston at least was aware of the transaction. Moreover, letters indicated that Wyshak was undoubtedly aware of the transaction as well. On June 26,1990, Reliance sent a copy of the custodial agreement to Wyshak, requesting that Wyshak execute it and return it to TCL. Additionally, Eggleston received a letter dated June 25, 1990, from Jamieson, stating: Concerning the transaction with LCE (Larry Leal). If you would, please have Mr. Wyshak execute two custodial" }, { "docid": "17142597", "title": "", "text": "that the attorney knew that the third party intended to rely upon those legal services. Abell v. Potomac Ins. Co., 858 F.2d 1104, 1133 (5th Cir.1988), vacated on other grounds, 492 U.S. 914, 109 S.Ct. 3236, 106 L.Ed.2d 584 (1989); Capital Bank & Trust Co. v. Core, 343 So.2d 284, 288 (La.Ct.App. 1st Cir.), writ not considered, 345 So.2d 61 (La.1977), writ refused, 345 So.2d 504 (La.1977). An attorney’s liability to a third party flows from the codal provision that establishes liability for a stipulation pour autrui pursuant to which one may bind himself to a contract for the benefit of a third party. See Abell, 858 F.2d at 1132. Where an attorney contracts to provide a professional opinion for the benefit of a third person, privity of contract results, and the agreement becomes binding and effective in favor of the third party upon his acceptance. Id. In Capital Bank, Core, an attorney, issued Capital a title opinion covering the property described in a collateral mortgage, knowing that Capital would rely thereon in making a loan to Core’s client. Core’s title opinion certified his examination of title, asserting that the property was free of all encumbrances save the collateral mortgage to Capital despite Core’s knowledge that the property was burdened with severe defects and encumbrances. See Capital Bank, 343 So.2d at 287-88. Similarly, LCE (Reliance) contracted with Wyshak to provide custodial services for its clients. Wyshak was aware that TCL expected him to act as custodian of the GNMAs themselves, and at no time did he take any - action to disabuse TCL of this belief. In his letter to TCL, Wyshak acknowledged his agreement with LCE, and acknowledged his obligations to TCL: “Henceforth, the Law Firm will not allow the GNMA Assets to be assigned, hypothecated,' sold or transferred until the Law Firm as Custodian receives from the Trust Company of Louisiana, either a written release ... or written instructions-” This same paragraph, along with the correspondence between Eggleston, Wyshak and Reliance, clearly demonstrates that Wyshak knew that TCL was relying on that information. Thus Wyshak had a legal" }, { "docid": "17142600", "title": "", "text": "other findings of liability under state law. Our review of the record convinces us to affirm these findings for essentially the reasons outlined by the trial court in its memorandum opinion. Federal Securities Law The pertinent rule of the Securities Exchange Act provides that: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made in the light of the circumstances under which they were made, not misleading, or (e) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 17 C.F.R. § 240.10b-5 (“Section 10b-5”). The elements of a Section 10b-5 civil liability claim are well established: The plaintiff must prove (1) a misstatement or omission (2) of material fact (3) occurring in connection with the purchase or sale of a security, that (4) was made with scienter and (5) upon which the plaintiff justifiably relied, (6) and that proximately caused injury to the plaintiff. Rubinstein v. Collins, 20 F.3d 160, 166 (5th Cir.1994). Wyshak argues that he should not have been found liable under federal securities law because (1) the notes given as security for the funds advanced by TCL were not “securities”; (2) only a “purchaser” or “seller” of a security may assert a claim under the federal rule and TCL was neither; (3) neither he nor Eggleston made any representations to TCL in connection with the transaction, so TCL could not have justifiably relied on any; (4) Wyshak, Eggleston, and his firm had no “scienter” that the'GNMAs were not authentic; and (5) while Wyshak, Eggleston, and his firm’s conduct may have abetted a fraudulent scheme, they should not be held liable under 10b-5 because" }, { "docid": "17142577", "title": "", "text": "the case at bar, the trial court found that none of the defendants actually held any interest in any of the GNMAs listed in TCL’s two notes, and thus the loans made were not backed up by any collateral. TCL loaned $2,500,000.00, thinking that it was investing in a long distance telephone company and that the investment was backed up by certain GNMA’s. TCL only discovered the fraud when N.N.P. Inc. (“NNP”) and L.C.E. International Inc. (“LCE”), the shell corporations to which it had loaned the money through Reliance, defaulted on the loan. Because the money TCL had loaned to the scheme came from seven ERISA plans managed by TCL and Ruston State Bank, pursuant to federal law, TCL restored those institutions to status quo ante by paying principal, attorneys’ fees, and interest. By the time the ease came to trial, many of the original 20 defendants had already settled with TCL, and some had been convicted of various wire fraud charges connected with the scheme. The remaining defendants included Reliance Capital Associates, Lloyd, Jamieson, Wyshak, Eggleston, Wyshak & Associates, and Grant Curtis. Lloyd had become a fugitive from justice and did not appear for trial. Curtis also did not appear for trial. Jamieson appeared pursuant to a writ of habeas corpus ad testificandum, having agreed to testify as a witness for TCL in exchange for dismissal as a defendant in the instant civil litigation. Wyshak and Eggle-ston appeared for trial pro se, though they ignored the scheduling order and their failure to comply with discovery orders led to severe sanctions. Jamieson testified that he and another of the defendants approached Eggleston and asked if Wyshak’s law firm would serve as custodian of the GNMA’s for various investors in the scheme. Eggleston, a non-lawyer previously convicted of securities fraud, worked with Wyshak in the law firm. Reliance believed that a potential investor would be reassured and more willing to invest if he thought that he could get possession of the notes from Wyshak’s law firm in the event of a default. Wyshak agreed to act as custodian in March, 1990." }, { "docid": "17142606", "title": "", "text": "of securities qualifies as a purchase. Rubin v. United States, 449 U.S. 424, 429, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981). If obtaining funds secured by a pledge of securities qualifies as a purchase, certainly obtaining funds secured by a pledge of a GNMA or an interest in a GNMA also qualifies. As with Wyshak’s argument that the notes were not securities and the transaction was not a purchase of a security, Wyshak’s argument that he did not know the transaction was not properly collateralized must also be rejected. To establish that a defendant had the requisite scienter and knowingly made material misrepresentations, a Section 10b-5 plaintiff must establish that the defendant intended to deceive, manipulate or defraud. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n. 12, 96 S.Ct. 1375, 1381 n. 12, 47 L.Ed.2d 668 (1976). Strict intentional misconduct is not required to show scienter, it is sufficient to prove conduct that is an extreme departure from the standards of ordinary care and presents a danger of misleading buyers or sellers, as well as either knowledge of that danger, or a danger so obvious that the actor must be aware of it. Warren v. Reserve Fund, Inc., 728 F.2d 741, 745 (5th Cir.1984). Analysis of scienter requires an examination of defendant’s conduct, not a mere assertion of plaintiffs confused mind. Warren, 728 F.2d at 745. Wyshak and Eggleston knew at all times that they did not hold the actual GNMAs. Moreover, Wyshak and Eggleston must at the very least have suspected that the formulators of the scheme did not really own the GNMAs in question from their experiences with the FBI and the Utah Insurance Commission. Wys-hak even sent a letter accusing Reliance of fraud, yet he turned around and assured TCL that his firm was indeed the custodian for the GNMA “assets.” Thus, as the trial court found, Wyshak intentionally misrepresented the situation to TCL by' failing to disclose that he did not have the GNMAs. For the purposes of the securities laws, an omission is material if there is a “substantial likelihood that the" }, { "docid": "17142585", "title": "", "text": "secured interest. Should you have any questions, please do not hesitate to contact Robert Wyshak at the Trust Services Department of the Palm Springs Office. Yours truly, LAW OFFICES OF ROBERT H. WYS-HAK & ASSOCIATES, LTD. [Signature] Jamieson testified that Wyshak agreed to send the letter to TCL conditionally on receipt of a custodial fee of $35,000. On the following day, January 31, 1991, Leal faxed to Wyshak and Eggleston a photocopy of a cashier’s check in the amount of $35,000 made out to Prudential Bache Securities and deposited in Fidelity Asset Management’s account. The cheek noted that it was for Wyshak’s custodial fee. In April, May, and June 1991, NNP failed to make the required monthly interest payments on both notes. On July 1,1991, TCL notified NNP and LCE of NNP’s default. TCL instructed Wyshak to sell the GNMAs pursuant to the security agreement, and Wyshak then informed TCL that he did not hold the GNMAs. TCL filed suit in August, 1991. In its Memorandum Ruling and Judgment filed February 23, 1995, the district court specifically found that Wyshak and Eggle-ston were not credible. The court found that Wyshak and Eggleston had drafted deliberately misleading documents implying that the “assets” in the law firm’s custody were GNMAs rather than assignments of GNMAs. The court also found that other documents created the appearance that Wyshak and Eg-gleston and the firm had been duly diligent in verifying the existence and pedigree of the GNMAs when in fact Wyshak had neither the GNMAs nor the assignments of them, nor did he even know how to perfect such an assignment. The court found that Wyshak and Eggleston were liable under Federal Securities law and Louisiana Securities Law for the damages done to TCL. The court also found that they were liable under Louisiana Civil Code art. 1953 (fraud), and that they were liable for negligent misrepresentation, breach of contract, and breach of fiduciary duty under Louisiana law. Wyshak, Wyshak & Associates, and Eggle-ston gave notice of appeal from the district court’s Memorandum Ruling and Judgment, as well as from the grant of costs" }, { "docid": "17142607", "title": "", "text": "as well as either knowledge of that danger, or a danger so obvious that the actor must be aware of it. Warren v. Reserve Fund, Inc., 728 F.2d 741, 745 (5th Cir.1984). Analysis of scienter requires an examination of defendant’s conduct, not a mere assertion of plaintiffs confused mind. Warren, 728 F.2d at 745. Wyshak and Eggleston knew at all times that they did not hold the actual GNMAs. Moreover, Wyshak and Eggleston must at the very least have suspected that the formulators of the scheme did not really own the GNMAs in question from their experiences with the FBI and the Utah Insurance Commission. Wys-hak even sent a letter accusing Reliance of fraud, yet he turned around and assured TCL that his firm was indeed the custodian for the GNMA “assets.” Thus, as the trial court found, Wyshak intentionally misrepresented the situation to TCL by' failing to disclose that he did not have the GNMAs. For the purposes of the securities laws, an omission is material if there is a “substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.” TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976). The standard for misrepresentation is whether the information disclosed, understood as a whole, would mislead a reasonable potential investor. Laird v. Integrated Resources, Inc., 897 F.2d 826, 832 (5th Cir.1990). The scope of this standard is determined by the relative status and sophistication of the parties. Id. As the trial court found, Wyshak’s misrepresentations were material. Wyshak was presented as a Harvard-educated attorney and former Assistant U.S. Attorney, thus it was reasonable that TCL would be misled by Wyshak’s misrepresentations. Wyshak also argues that TCL’s reliance on his custodianship was not justifiable, and that TCL had not performed any semblance of a due diligence examination prior to investing. Wyshak argues that TCL failed to underwrite the NNP transactions, neglected to obtain readily available information on the identity of the borrower, the repayment structure," }, { "docid": "17142598", "title": "", "text": "loan to Core’s client. Core’s title opinion certified his examination of title, asserting that the property was free of all encumbrances save the collateral mortgage to Capital despite Core’s knowledge that the property was burdened with severe defects and encumbrances. See Capital Bank, 343 So.2d at 287-88. Similarly, LCE (Reliance) contracted with Wyshak to provide custodial services for its clients. Wyshak was aware that TCL expected him to act as custodian of the GNMAs themselves, and at no time did he take any - action to disabuse TCL of this belief. In his letter to TCL, Wyshak acknowledged his agreement with LCE, and acknowledged his obligations to TCL: “Henceforth, the Law Firm will not allow the GNMA Assets to be assigned, hypothecated,' sold or transferred until the Law Firm as Custodian receives from the Trust Company of Louisiana, either a written release ... or written instructions-” This same paragraph, along with the correspondence between Eggleston, Wyshak and Reliance, clearly demonstrates that Wyshak knew that TCL was relying on that information. Thus Wyshak had a legal duty to TCL as third party beneficiary to refrain from supplying incorrect information. Furthermore, Wys-hak breached that duty in misrepresenting that he had custody of the GNMA securities and their assignments, and in misrepresenting that LCE had an ownership interest in the GNMAs. That breach caused TCL substantial damages when it had to reimburse all of the ERISA funds that it had invested in the scheme. Thus, TCL established that Wyshak was liable for negligent misrepresentation under Louisiana law. Based on the foregoing factual scenario, the trial court similarly concluded that Wys-hak was liable under Louisiana law for fraud, La.Civ.Code art. 1953, and breach of contract, La.Civ.Code art. 1997, and fraud under Louisiana Securities Laws, La.Rev.Stat. § 51:714 A. The trial court further found that Wyshak was liable for breach of fiduciary duty, citing Gerdes v. Estate of Cush, 953 F.2d 201, 204 (5th Cir.1992); Plaquemines Parish Commission Council v. Delta Development Co., Inc., 502 So.2d 1034, 1040 (La.1987). Because we find that Wyshak was liable for negligent misrepresentation, we will not elaborate on the" }, { "docid": "14890007", "title": "", "text": "78j. . Rule 10b-5 provides: Employment of manipulative and deceptive devices. It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 17 C.F.R. § 240.10b-5. . Appellants cite to Canizaro v. Kohlmeyer & Company, 370 F.Supp. 282 (E.D.La.1974), aff'd. on other grounds, 512 F.2d 484 (5th Cir.1975), for the proposition that, when a broker solicits or recommends the purchase of a security, the broker must have a reasonable basis for what he tells his customer. The discussion in Caniza-ro regarding a requirement that there be a reasonable basis for a recommendation was dictum. Furthermore, Canizaro was decided prior to the Supreme Court’s holding in Hochfelder, supra, that scienter is a requisite element of any action for damages under § 10(b) and Rule 10b-5. Gochnauer v. A.G. Edwards & Sons, Inc., 810 F.2d 1042 (11th Cir.1987), cited by appellants for the proposition that defendants owed them a series of duties which were breached, set forth the duties listed as common law fiduciary obligations, not duties owed under the federal securities laws. 810 F.2d at 1048-51. Gochnauer held only that a broker could fail to violate federal securities anti-fraud provisions and still be liable under state common law for breach of fiduciary obligations. . The Ninth Circuit and the Seventh Circuit have both held that, \"Rather than being ‘merely a greater degree of ordinary negligence,’ recklessness is closer to ‘a lesser form of intent.’” Vucinich v. Paine, Webber, Jackson & Curtis, Inc., 739 F.2d" }, { "docid": "17142596", "title": "", "text": "complaints. Misrepresentation Wyshak argues that his law firm owed no duty to TCL under the laws of either Louisiana or California. He asserts that he and his firm were not part of the conspiracy to defraud promulgated by other defendants, that they did not make any representations whatsoever to TCL prior to funding, and that his letter to TCL did not constitute a legal opinion as to the proper method of perfecting a security interest in GNMAs. Under Louisiana law, the elements of a claim for negligent misrepresentation are: (1) the existence of a legal duty on the part of the defendant to supply correct information or to refrain from supplying incorrect information; (2) breach of that duty, and (3) damages caused to the plaintiff as a result of that breach. Barrie v. V.P. Exterminators, 625 So.2d 1007, 1015 (La.1993). In order for an attorney to have a legal duty to supply correct information so that he is liable to a non-client for malpractice, the plaintiff must show that the attorney provided legal services and that the attorney knew that the third party intended to rely upon those legal services. Abell v. Potomac Ins. Co., 858 F.2d 1104, 1133 (5th Cir.1988), vacated on other grounds, 492 U.S. 914, 109 S.Ct. 3236, 106 L.Ed.2d 584 (1989); Capital Bank & Trust Co. v. Core, 343 So.2d 284, 288 (La.Ct.App. 1st Cir.), writ not considered, 345 So.2d 61 (La.1977), writ refused, 345 So.2d 504 (La.1977). An attorney’s liability to a third party flows from the codal provision that establishes liability for a stipulation pour autrui pursuant to which one may bind himself to a contract for the benefit of a third party. See Abell, 858 F.2d at 1132. Where an attorney contracts to provide a professional opinion for the benefit of a third person, privity of contract results, and the agreement becomes binding and effective in favor of the third party upon his acceptance. Id. In Capital Bank, Core, an attorney, issued Capital a title opinion covering the property described in a collateral mortgage, knowing that Capital would rely thereon in making a" }, { "docid": "17142599", "title": "", "text": "duty to TCL as third party beneficiary to refrain from supplying incorrect information. Furthermore, Wys-hak breached that duty in misrepresenting that he had custody of the GNMA securities and their assignments, and in misrepresenting that LCE had an ownership interest in the GNMAs. That breach caused TCL substantial damages when it had to reimburse all of the ERISA funds that it had invested in the scheme. Thus, TCL established that Wyshak was liable for negligent misrepresentation under Louisiana law. Based on the foregoing factual scenario, the trial court similarly concluded that Wys-hak was liable under Louisiana law for fraud, La.Civ.Code art. 1953, and breach of contract, La.Civ.Code art. 1997, and fraud under Louisiana Securities Laws, La.Rev.Stat. § 51:714 A. The trial court further found that Wyshak was liable for breach of fiduciary duty, citing Gerdes v. Estate of Cush, 953 F.2d 201, 204 (5th Cir.1992); Plaquemines Parish Commission Council v. Delta Development Co., Inc., 502 So.2d 1034, 1040 (La.1987). Because we find that Wyshak was liable for negligent misrepresentation, we will not elaborate on the other findings of liability under state law. Our review of the record convinces us to affirm these findings for essentially the reasons outlined by the trial court in its memorandum opinion. Federal Securities Law The pertinent rule of the Securities Exchange Act provides that: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made in the light of the circumstances under which they were made, not misleading, or (e) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 17 C.F.R. § 240.10b-5 (“Section 10b-5”). The elements of a Section 10b-5 civil" }, { "docid": "17142578", "title": "", "text": "Wyshak, Eggleston, Wyshak & Associates, and Grant Curtis. Lloyd had become a fugitive from justice and did not appear for trial. Curtis also did not appear for trial. Jamieson appeared pursuant to a writ of habeas corpus ad testificandum, having agreed to testify as a witness for TCL in exchange for dismissal as a defendant in the instant civil litigation. Wyshak and Eggle-ston appeared for trial pro se, though they ignored the scheduling order and their failure to comply with discovery orders led to severe sanctions. Jamieson testified that he and another of the defendants approached Eggleston and asked if Wyshak’s law firm would serve as custodian of the GNMA’s for various investors in the scheme. Eggleston, a non-lawyer previously convicted of securities fraud, worked with Wyshak in the law firm. Reliance believed that a potential investor would be reassured and more willing to invest if he thought that he could get possession of the notes from Wyshak’s law firm in the event of a default. Wyshak agreed to act as custodian in March, 1990. At trial, Jamieson presented evidence from which the trial court adduced that Wyshak knew the Reliance transactions were not backed up by interest in any GNMA’s, and that he and Eggleston misrepresented what they held. While it was apparently Wyshak who carefully crafted letters to imply that the assets held in custody included the GNMA’s themselves, Eggleston built the law firm’s “due diligence” file which made it look as if the law firm had carefully made sure that the transactions were indeed backed by GNMAs. According to Jamieson, it was Eg-gleston who drafted or tailored a number of the supporting documents that lent credence to the scheme. Eggleston helped in fabricating a statement of account and a comfort letter from Johnson & Associates, purportedly an accounting firm. Eggleston also told Jamieson how to create a fake account statement from the Republic National Bank in Panama for the custodial files. For his part, Wyshak also tried to demonstrate that he had performed due diligence in assuring that the securities involved existed. Wyshak asked to meet the" }, { "docid": "23197859", "title": "", "text": "that erroneously portrayed Fryar as purchasing and pledging $2,000,000 of bonds with his own money; and finally, he caused the mails to be used in an attempt to cover up the fraud and deceive bondholders into believing All American was performing more obligations than it had actually undertaken. Thus, the evidence strongly supports the jury’s RICO verdict. V. State Law Claims. The bondholders also urge various state grounds for imposing substantive liability upon Fryar and WU. They allege that defendants violated the Louisiana Blue Sky Law (LBSL) (La.R.S. 51:701 et seq.), negligently misrepresented and/or fraudulently misrepresented material facts (La.Civ.Code arts. 2315, 1953), committed fraud (La.Civ. Code art. 1953), and aided and abetted others in violating the law (La.Civ.Code art. 2324). The bondholders also claim that WU breached a fiduciary duty to them and committed legal malpractice. We now consider the merits of these claims. A. Louisiana Blue Sky Law. For exactly the same reasons that the defendants are not “sellers” under section 12, they are not “sellers” within the meaning of the LBSL. The LBSL was modeled after the federal Securities Act. Caldwell v. Trans-Gulf Petroleum Corp., 322 So.2d 171, 174 (La.1975). The relevant language of the LBSL is virtually identical to the language of section 12. Although there are no Louisiana cases discussing “seller” status under the LBSL, in the absence of Louisiana authority, its state Louisiana courts interpret the LBSL in accordance with federal precedents. Ek v. Nationwide Candy Div., Ltd., 403 So.2d 780, 785 (La.App.3d Cir.), writ denied, 407 So.2d 732 (La.1981). Accordingly, the logic of the Supreme Court’s Pinter decision is fully applicable to the LBSL. B. Negligent Misrepresentation; Fraudulent Misrepresentation. The bondholder plaintiffs assert several Louisiana claims based upon misrepresentation. Each of the misrepresentation claims plaintiffs allege — negligent misrepresentation and fraudulent misrepresentation — requires the plaintiffs to prove reliance. Under Louisiana law, reliance means actual reliance. La Croix v. Recknagel, 230 La. 842, 89 So.2d 363, 367 (La.1956); Luquette v. Floyd, 147 So.2d 894, 899 (La.App.1962), writ denied, 244 La. 119, 150 So.2d 585 (1963). Here, the class has completely failed to prove that" } ]

[ { "docid": "7251520", "title": "", "text": "Cong., 2d Sess. 1241 (1984). That would make a joke of the statute by validating the election of a taxpayer who willfully flouted the requirements for a valid election. No matter; Prussner’s lawyer could easily have obtained an extension of time for filing the estate tax return. He neither sought an extension of time nor filed an incomplete recapture agreement with the return; he failed to file a recapture agreement with the return, period. For this default the statute provides, as the Eighth Circuit has also concluded, no absolution. This is true we think even if the alternative interpretation of the statute is correct, under which any insubstantial default may be excused even if it is not the type of default that subsections (B)(i) and (B)(ii) expressly make curable. Our earlier suggestion that this would leave the key statutory concept of substantial compliance completely undefined was imprecise. The Tax Court has created a general doctrine of substantial compliance with requirements for electing favorable tax treatment, American Air Filter Co. v. Commissioner, 81 T.C. 709, 719-20 (1983), and the courts of appeals have assumed the validity of this federal common law doctrine, although without exploring its foundations or justifications. Atlantic Veneer Corp. v. Commissioner, 812 F.2d 158, 161 (4th Cir.1987); Young v. Commissioner, 783 F.2d 1201, 1205 (5th Cir.1986); Knight-Ridder Newspapers, Inc. v. United States, 743 F.2d 781, 794-97 (11th Cir.1984); cf. United States v. Van Keppel, 321 F.2d 717, 720 (10th Cir.1963). The doctrine might supply a meaning for substantial compliance in section 2032A(d)(3). This approach merges Prussner’s common law argument for substantial compliance into her statutory argument. Since she does not argue that the statutory concept differs from the common law concept, we need not consider them separately. The Tax Court has at times articulated the doctrine of substantial compliance in most liberal terms, notably but not only in the American Air Filter case, where the court sketched a five-factor test that emphasizes the harm that lack of full compliance causes the Internal Revenue Service; three of the five factors ring changes on that theme. Prussner’s four-month delay in" } ]

[ { "docid": "13984026", "title": "", "text": "return in and of itself is considered to be a partner AAR. Nor are we aware of any published opinion of the Court of Appeals for the Ninth Circuit (or any other court) that holds that an amended return in and of itself is considered a partner AAR. The regulations require that certain information be relayed to the Commissioner in a certain manner for a request to qualify as a partner AAR. See sec. 301.6227(d)-1(a), Proced. & Admin. Regs. An amended return may not contain that information, or it may not be submitted to the Commissioner in the manner required by the regulations. We conclude that an amended return is not necessarily a partner AAR. We now address petitioners’ second argument. 3. Whether Petitioners’ Amended Return Substantially Complied With Requirements for a Partner AAR Petitioners also argue that their amended return was a partner AAR because it substantially complied with the requirements for a partner AAR. We agree with petitioners that their amended return, filed without a Form 8082, may be characterized as a partner AAR if it substantially complied with the requirements for a partner AAR. We disagree with petitioners, however, that their amended return substantially complied with those requirements. The substantial compliance doctrine is a narrow equitable doctrine that courts may apply to avoid hardship where a party establishes that the party intended to comply with a provision, did everything reasonably possible to comply with the provision, but did not comply with the provision because of a failure to meet the provision’s specific requirements. See Sawyer v. County of Sonoma, 719 F.2d 1001, 1007-1008 (9th Cir. 1983); Fischer Indus., Inc. v. Commissioner, 87 T.C. 116, 122 (1986), affd. 843 F.2d 224 (6th Cir. 1988); see also Credit Life Ins. Co. v. United States, 948 F.2d 723, 726-727 (Fed. Cir. 1991); Prussner v. United States, 896 F.2d 218, 224 (7th Cir. 1990); Estate of Chamberlain v. Commissioner, T.C. Memo. 1999-181, affd. 9 Fed. Appx. 713 (9th Cir. 2001). The record does not establish that petitioners intended to file the amended return as a partner AAR. The amended return was" }, { "docid": "13082563", "title": "", "text": "apparent that Line 11 refers not to the entire net operating loss for 1976, but only a portion of it. Therefore, they conclude, “the Commissioner should not be permitted to penalize taxpayers who have been misled into erroneously understanding that they were unequivocally indicating their total 1976 net operating loss.” Were simple misreading of the Tax Code a valid defense to tax liability, however, we have no doubt that incompetency in providing accounting services would carry a premium. The Tax Court correctly held the entry of the loss carryover on the taxpayers’ Form 4625 “by no stretch of the imagination” indicated an intent to forego the carryback period, and did not literally comply with the temporary regulations. IV Taxpayers assert that even if their Form 4625 Line 11 entry did not literally comply with the requirements of Temporary Regulation 7.0(d), they have nevertheless substantially complied with the requirements of section 172(b)(3)(C) so that strict adherence to the regulation was unnecessary. Although regulatory requirements that relate to the substance or essence of a statutory provision of the Internal Revenue Code must be strictly complied with, a line of cases from the United States Tax Court has established that “substantial compliance with regulatory requirements may suffice when such requirements are procedural and when the essential statutory purposes have been fulfilled.” American Air Filter v. Commissioner, 81 T.C. 709, 719 (1983). In a number of cases the court has determined that a taxpayer has substantially complied with a statute of the tax code, even though he failed to follow the strict procedures for making an election as set forth in a regulation promulgated pursuant to the statute. See, e.g., American Air Filter, id,.; Taylor v. Commissioner, 67 T.C. 1071 (1977); Columbia Iron & Metal Co. v. Commissioner, 61 T.C. 5 (1973). Where regulatory requirements relate to the substance or essence of statutes requiring elections, however, the court has rejected assertions of substantial compliance. See, e.g., Penn-Dixie Steel Corp. v. Commissioner, 69 T.C. 837 (1978); Dunavant v. Commissioner, 63 T.C. 316 (1974); Valdes v. Commissioner, 60 T.C. 910 (1973). The primary inquiry, then, concerns" }, { "docid": "2568875", "title": "", "text": "taxpayers and the government. It then reasons that those purposes are met when it calculates its depreciation properly under the Guideline Class Life System, reports the amount accurately on its tax return, and maintains its books and records adequately to allow an audit. Any other election requirements are merely “procedural details,” unnecessary to the legislative purposes. In support of this argument, Taxpayer cites a number of Tax Court decisions in which taxpayers had failed to meet the literal requirements for an election but the courts held that they had substantially complied. American Air Filter v. Commissioner, 81 T.C. 709 (1983); Tipps v. Commissioner, 74 T.C. 458 (1980); Columbia Iron & Metal v. Commissioner, 61 T.C. 5 (1973); Hewlett-Packard v. Commissioner, 67 T.C. 736 (1977); Sperapani v. Commissioner, 42 T.C. 308 (1964); O’Dowd v. Commissioner, 35 T.C.M. (CCU) 754 (1976), aff'd, 595 F.2d 262 (5th Cir.1979). The courts looked to see whether specific requirements related to the “essence” of the statutory and regulatory scheme. See Tipps, supra, 74 T.C. at 468; Valdes v. Commissioner, 60 T.C. 910, 913 (1973). If not, then literal compliance was not necessary for a valid election. The court in Hewlett-Packard listed a number of factors to be considered: In ascertaining whether a particular provision of a regulation stating how an election is to be made must be literally complied with, it is necessary to examine the purpose, its relationship to other provisions, the terms of the underlying statute, and the consequences of failure to comply with the provision in question. * * * 67 T.C. at 749, quoting Valdes, supra, 60 T.C. at 913. Applying that same analysis here, we find that the Taxpayer has overlooked certain essential purposes of I.R.C. § 167(m) and Treas.Reg. § 1.167(a)-12. First, the Congress plainly intended that each taxpayer’s election be binding. An election to come under the class life system for a taxable year may not be changed or revoked. See S.Rep. No. 92-437, 92nd Cong., 1st Sess. 49, H.R.Rep. No. 92-533, 92nd Cong., 1st Sess. 33, U.S.Code Cong. & Ad.News 1971, p. 1825. This policy is furthered by" }, { "docid": "2568874", "title": "", "text": "accounts in the asset guideline class, and (3) the aggregate of the salvage value established for all accounts in the asset guideline class; Id. at § 1.167(a)-l2(e)(3)(ii). In either event, Schedule G of the corporate tax form also provides a box which the taxpayer must check to substantiate its election to use the Guideline Class Life method. If a taxpayer fails to make a proper election, it is required to depreciate its equipment under the “facts and circumstances” method. Both sides agree that certain subsidiaries of Knight-Ridder failed to comply literally with the election requirements. They failed to file Form 5006, they did not otherwise provide the information alerting the Commissioner to an election, and they failed to check the box in Schedule G. Taxpayer argues, however, that the subsidiaries “substantially complied” with those requirements of Treas.Reg. § 1.167(a)-12 which go to the essence of the legislative purposes of Section 167(m). Knight-Ridder asserts that the legislative purposes are to simplify and reduce the number of depreciation systems and to reduce the number of disputes between taxpayers and the government. It then reasons that those purposes are met when it calculates its depreciation properly under the Guideline Class Life System, reports the amount accurately on its tax return, and maintains its books and records adequately to allow an audit. Any other election requirements are merely “procedural details,” unnecessary to the legislative purposes. In support of this argument, Taxpayer cites a number of Tax Court decisions in which taxpayers had failed to meet the literal requirements for an election but the courts held that they had substantially complied. American Air Filter v. Commissioner, 81 T.C. 709 (1983); Tipps v. Commissioner, 74 T.C. 458 (1980); Columbia Iron & Metal v. Commissioner, 61 T.C. 5 (1973); Hewlett-Packard v. Commissioner, 67 T.C. 736 (1977); Sperapani v. Commissioner, 42 T.C. 308 (1964); O’Dowd v. Commissioner, 35 T.C.M. (CCU) 754 (1976), aff'd, 595 F.2d 262 (5th Cir.1979). The courts looked to see whether specific requirements related to the “essence” of the statutory and regulatory scheme. See Tipps, supra, 74 T.C. at 468; Valdes v. Commissioner, 60 T.C." }, { "docid": "22987921", "title": "", "text": "... taxpayer may file a petition with the Tax Court for a redetermination of the deficiency.” The Tax Court has jurisdiction only when the Commissioner issues a valid deficiency notice, and the taxpayer files a timely petition for redetermination. “A valid petition is the basis of the Tax Court’s jurisdiction. To be valid, a petition must be filed from a valid statutory notice.” Stamm International Corp. v. Commissioner, 84 T.C. 248, 252 (1985). See Midland Mortgage Co. v. Commissioner, 73 T.C. 902, 907 (1980). The taxpayers correctly note that section 6212(a) authorizes the Commissioner to send a notice of deficiency only if he first “determines that there is a deficiency.” Because the deficiency notice mailed to the taxpayers contained an explanation of a tax shelter completely unrelated to their return, contained no adjustments to tax based on their return as filed, and stated affirmatively that the taxpayers’s return is “unavailable at this time,” taxpayers maintain that the Commissioner could not have “determined” a deficiency with respect to them. The taxpayers assert that, in the absence of a determination, the deficiency notice was invalid and therefore the Tax Court lacked jurisdiction. The Tax Court rejected this argument, finding that “[t]he requirements of section 6212(a) are met if the notice of deficiency sets forth the amount of the deficiency and the taxable year involved.” Scar v. Commissioner, 81 T.C. 855, 860-61 (1983). We agree with the Tax Court that no particular form is required for a valid notice of deficiency, Abrams v. Commissioner, 787 F.2d 939, 941 (4th Cir.), cert. denied,—U.S.-, 107 S.Ct. 271, 93 L.Ed.2d 248 (1986); Benzvi v. Commissioner, 787 F.2d 1541, 1542 (11th Cir.), cert. denied,—U.S.-, 107 S.Ct. 273, 93 L.Ed.2d 250 (1986), and the Commissioner need not explain how the deficiencies were determined. Barnes v. Commissioner, 408 F.2d 65, 68 (7th Cir.) (citing Commissioner v. Stewart, 186 F.2d 239, 242 (6th Cir. 1951)), cert. denied, 396 U.S. 836, 90 S.Ct. 94, 24 L.Ed.2d 86 (1969). The notice must, however, “meet certain substantial requirements.” Abrams, 787 F.2d at 941. “The notice must at a minimum indicate that the IRS" }, { "docid": "2530546", "title": "", "text": "is whether the requirements relate “to the substance or essence of the statute.” Fred J. Sperapani, 42 T.C. 308, 331 (1964). If so, strict adherence to all statutory and regulatory requirements is a precondition to an effective election. Lee R. Dunavant, 63 T.C. 316 (1974). On the other hand, if the requirements are procedural or directory in that they are not of the essence of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict, compliance. See Lee R. Dunavant, supra; Georgie S. Cary, 41 T.C. 214 (1963); Columbia Iron & Metal Co., 61 T.C. 5 (1973). * * * In the cases cited by petitioner and in similar cases decided by this Court, the regulations in issue were held “procedural” or “directory” in nature. See, e.g., Taylor v. Commissioner, supra; Hewlett-Packard Co. v. Commissioner, 67 T.C. 736 (1977); Columbia Iron & Metal Co. v. Commissioner, 61 T.C. 5 (1973); but see Valdes v. Commissioner, 60 T.C. 910 (1973); Fehr Finance Co. v. Commissioner, 58 T.C. 174 (1972), affd. 487 F.2d 184 (8th Cir. 1973); National Western Life Insurance Co. v. Commissioner, 54 T.C. 33 (1970). Section 20.2032A-8(a)(3), Estate Tax Regs., is not such a “procedural” or “directory” regulation. The requisite agreement is an integral part of the statutory scheme in that it subjects all qualified heirs to potential recapture tax liability. Moreover, the substantial compliance doctrine is not applicable where, as here, the statute or regulation provides with detailed specificity the manner in which an election is to be made. Taylor v. Commissioner, 67 T.C. at 1080; Thorrez v. Commissioner, 31 T.C. 655 (1958), affd. 272 F.2d 945 (6th Cir. 1959). Substantial compliance is therefore insufficient to secure the benefits of special use valuation. Protective Election Finally, petitioner maintains that the original return contained the elements of a “protective election” under section 20.2032A-8(b), Estate Tax Regs. Petitioner is mistaken. A protective election may be made when an appraisal of specially valued property is pending when the return is filed. Such an election is" }, { "docid": "2058719", "title": "", "text": "with respect to 1974. The petitioner included the distributions received from Int and Intfin during 1975 on its 1974 return, and it did not include any amount as subpart F income of Int and Intfin on its 1974 return. However, no election statement was filed with the petitioner’s 1974 return; it was not until Agent Schaller informed the petitioner’s officers of this omission that the petitioner’s officers submitted an election statement for 1974. The Commissioner \"may insist upon full compliance with his regulations” (Angelus Milling Co. v. Commissioner, 325 U.S. 293, 296 (1945)) when the regulatory requirements relate to the substance or essence of a statute (see Penn-Dixie Steel Corp. v. Commissioner, 69 T.C. 837 (1978); Dunavant v. Commissioner, 63 T.C. 316 (1974); Thorrez v. Commissioner, 31 T.C. 655 (1958), affd. per curiam 272 F.2d 945 (6th Cir. 1959)), but we have held that substantial compliance with regulatory requirements may suffice when such requirements are procedural and when the essential statutory purposes have been fulfilled. Taylor v. Commissioner, 67 T.C. 1071 (1977); Hewlett-Packard Co. v. Commissioner, 67 T.C. 736 (1977); Columbia Iron & Metal Co. v. Commissioner, 61 T.C. 5 (1973); Dougherty v. Commissioner, 60 T.C. 917 (1973), supplemental opinion 61 T.C. 719 (1974); Hoffman v. Commissioner, 47 T.C. 218 (1966), affd. per curiam 391 F.2d 930 (5th Cir. 1968); Cary v. Commissioner, 41 T.C. 214 (1963). Several factors have been examined in determining whether to permit less-than-literal compliance with regulatory requirements: whether the taxpayer’s failure to comply fully defeats the purpose of the statute; whether the taxpayer attempts to benefit from hindsight by adopting a position inconsistent with his original action or omission; whether the Commissioner is prejudiced by the untimely election; whether the sanction imposed on the taxpayer for the failure is excessive and out of proportion to the default; and whether the regulation provided with detailed specificity the manner in which an election was to be made. See, e.g., Taylor v. Commissioner, supra; Columbia Iron & Metal Co. v. Commissioner, supra; Denman Tire & Rubber Co. v. Commissioner, 14 T.C. 706 (1950), affd. 192 F.2d 261 (6th" }, { "docid": "13082564", "title": "", "text": "the Internal Revenue Code must be strictly complied with, a line of cases from the United States Tax Court has established that “substantial compliance with regulatory requirements may suffice when such requirements are procedural and when the essential statutory purposes have been fulfilled.” American Air Filter v. Commissioner, 81 T.C. 709, 719 (1983). In a number of cases the court has determined that a taxpayer has substantially complied with a statute of the tax code, even though he failed to follow the strict procedures for making an election as set forth in a regulation promulgated pursuant to the statute. See, e.g., American Air Filter, id,.; Taylor v. Commissioner, 67 T.C. 1071 (1977); Columbia Iron & Metal Co. v. Commissioner, 61 T.C. 5 (1973). Where regulatory requirements relate to the substance or essence of statutes requiring elections, however, the court has rejected assertions of substantial compliance. See, e.g., Penn-Dixie Steel Corp. v. Commissioner, 69 T.C. 837 (1978); Dunavant v. Commissioner, 63 T.C. 316 (1974); Valdes v. Commissioner, 60 T.C. 910 (1973). The primary inquiry, then, concerns the “essence” of section 172(b)(3)(C), and whether the election requirement relates to that essence or is merely procedural or directory. Taxpayers point us to the legislative history of the statute, which indicates that the statute was drafted out of congressional concern that because of adverse economic conditions in the years just prior to 1976, many taxpayers would not generate sufficient income in existing carryover periods to enable them to use their large operating loss carryovers: “[i]n order to reduce the possibility that this problem will arise in the future, the committee has decided to provide a. loss carryover option under which eligible business taxpayers may elect a longer loss carryover in lieu of the loss carryback to which they are otherwise entitled.” S.Rep. No. 938, 94th Cong., 2d Sess. 198, reprinted in 1976 U.S.Code Cong. & Ad.News 2897, 3439, 3629 [our emphasis]. Taxpayers argue that it is clear from this statement of legislative intent and from the plain language of the statute itself that the only condition or requirement of the statute is that the" }, { "docid": "15824561", "title": "", "text": "conclude, therefore, that the reporting requirements are directory and not mandatory. See Taylor v. Commissioner, supra at 1078-1079. Furthermore, our conclusion is not altered by the fact that section 170(a) states that “A charitable contribution shall be allowed as a deduction only if verified under regulations prescribed by the Secretary.” See Cary v. Commissioner, 41 T.C. 214 (1963), where we held that a similar provision in section 302(c)(2)(A)(iii), requiring the filing of an agreement to notify the Commissioner of reacquisitions of stock within a 10-year period of a redemption under section 302(b)(3) in the manner prescribed by an applicable regulation, is directory rather than mandatory. The fact that a Code provision conditions the entitlement of a tax benefit upon compliance with respondent’s regulation does not mean that literal as opposed to substantial compliance is mandated. Cary v. Commissioner, supra. In the case before us there is no question that a donation of the two airships was made during the taxable year, that the subject of the donation was appraised at the amount claimed by petitioners as a charitable deduction during the taxable year by a qualified appraiser, and that the donee was qualified to receive a charitable contribution. In fact, with the exception of the excellent qualifications of the appraiser all of these facts appeared on the Form 8283 attached to the return filed by petitioners. Furthermore, the name, title, and place of employment of the appraiser also appeared on the Form 8283 together with the identification number assigned to his employer by respondent. The appraiser’s qualifications were promptly furnished to respondent’s agent at or near the commencement of his audit. Therefore, this is not a case where petitioners failed to obtain a timely appraisal of the donated property and thereby failed to establish its value for claiming a contribution deduction on their return. Instead, petitioners, in this case, met all of the elements required to establish the substance or essence of a charitable contribution, but merely failed to obtain and attach to their return a separate written appraisal containing the information specified in respondent’s regulations even though substantially all" }, { "docid": "10801657", "title": "", "text": "Park Broadcasting, Inc. v. Commissioner, 78 T.C. 1093 (1982), petitioners contend that in the absence of a requirement that the election be filed with an original return, filing the Form 970 with an amended return fully satisfies the timeliness requirement of section 472. Although petitioners’ arguments are well crafted, we are unpersuaded that Mayfran made a timely election for 1975. In general, substantial compliance with election requirements entails, at a minimum, a clear expression of the taxpayer’s intention to elect appearing either on the original return or, if the circumstances necessitating an election arise after the filing of an original return, as soon as practicable on an amended return. Knight-Ridder Newspapers v. United States, 743 F.2d 781 (11th Cir. 1984); Atlantic Veneer Corp. v. Commissioner, 85 T.C. 1075 (1985). As we said in Atlantic Veneer Corp. v. Commissioner, supra at 1082-1083: We have examined the cases as to what constitutes a statement of election under various provisions of the Internal Revenue Code and have found that, absent a formal election, a submitted return and its attached schedules must evidence an affirmative intent on taxpayer’s part to make the required election and be bound thereby. E.g., American Air Filter Co. v. Commissioner, 81 T.C. 709, 720-723 (1983); Tipps v. Commissioner, [74 T.C. 458,] 468-471 [(1980)]; Hewlett-Packard Co. v. Commissioner, 67 T.C. 736, 747-750 (1977). Failure to manifest such intent has repeatedly resulted in taxpayer’s alleged election being rejected. E.g., Knight-Ridder Newspapers v. United States, 743 F.2d 781, 793-797 (11th Cir. 1984); Young v. Commissioner, 83 T.C. 831, 839-840 (1984); Estate of Skaggs v. Commissioner, [75 T.C. 191,] 205-208 [(1980), affd. per curiam 672 F.2d 756 (9th Cir. 1982)]; Valdes v. Commissioner, 60 T.C. 910, 913-915 (1973). Park Broadcasting is not to the contrary. The taxpayer in Park Broadcasting affirmatively stated its election on an amended return filed as soon as practicable after the election was permitted by a key change in Federal regula tions that occurred after the taxpayer had filed its original return. Petitioners also rely on Dougherty v. Commissioner, 60 T.C. 917 (1973), but Dougherty also involved a change" }, { "docid": "10801658", "title": "", "text": "attached schedules must evidence an affirmative intent on taxpayer’s part to make the required election and be bound thereby. E.g., American Air Filter Co. v. Commissioner, 81 T.C. 709, 720-723 (1983); Tipps v. Commissioner, [74 T.C. 458,] 468-471 [(1980)]; Hewlett-Packard Co. v. Commissioner, 67 T.C. 736, 747-750 (1977). Failure to manifest such intent has repeatedly resulted in taxpayer’s alleged election being rejected. E.g., Knight-Ridder Newspapers v. United States, 743 F.2d 781, 793-797 (11th Cir. 1984); Young v. Commissioner, 83 T.C. 831, 839-840 (1984); Estate of Skaggs v. Commissioner, [75 T.C. 191,] 205-208 [(1980), affd. per curiam 672 F.2d 756 (9th Cir. 1982)]; Valdes v. Commissioner, 60 T.C. 910, 913-915 (1973). Park Broadcasting is not to the contrary. The taxpayer in Park Broadcasting affirmatively stated its election on an amended return filed as soon as practicable after the election was permitted by a key change in Federal regula tions that occurred after the taxpayer had filed its original return. Petitioners also rely on Dougherty v. Commissioner, 60 T.C. 917 (1973), but Dougherty also involved a change in circumstances occurring after the original return had been filed. In this case, no impediment existed to Mayfran’s election on petitioners’ 1975 return. Indisputably Mayfran intended to use the LIFO method for taxable year 1975, and the record is clear that petitioners could have taken all steps on the 1975 return that were necessary to perfect the election. We look in vain, however, for any clear expression of that intent on the 1975 return. Petitioners’ original 1975 return gave no indication that the value of Mayfran’s closing inventory was being computed under the LIFO method. From petitioners’ returns filed prior to audit, respondent could not determine (1) that Mayfran used the LIFO method, (2) which LIFO methodology was used, or (3) whether petitioners’ calculations correctly employed the LIFO method. Moreover, the face of every indication on the original return was that Mayfran had chosen to retain the FIFO method. Petitioners failed to answer the question asking whether any change in inventory accounting had occurred, and furthermore, stated explicitly that the FIFO method was used to" }, { "docid": "2270617", "title": "", "text": "not designed to simply reimburse the drivers for their actual or reasonably expected mileage expenses. Rather, the evidence suggests that the plan’s primary purpose was to treat the least amount possible of the drivers’ 40% commission as taxable wages. We hold that reimbursements under such a plan do not meet the requirements of 26 C.F.R. § 1.62 — 2(d). C. Substantial Compliance Shotgun contends that even its reimbursements fall outside the literal terms of the applicable regulations, it nonetheless substantially complied with the regulations’ requirements. Substantial compliance with regulatory requirements may suffice when such requirements are procedural and when the essential statutory purposes have been fulfilled. American Air Filter Co. v. Commissioner of Internal Revenue, 81 T.C. 709, 719, 1983 WL 14887 (1983). Full compliance is necessary when the requirement relates to the substance of the statute or where the essential purposes have not been fulfilled. Id. The business connection requirement here at issue is clearly substantive, as it enforces the fundamental distinction between taxable compensation and tax-exempt reimbursement which underpins this entire aspect of the tax system. Requiring a demonstrable connection to actual business expenses prevents companies from improperly sheltering otherwise taxable compensation under the guise of reimbursement. Moreover, IRS regulations specifically state that if any reimbursements fail this business connection test, the entire scheme is invalidated and “all amounts paid under the arrangement are treated as paid under a nonaccountable plan.\" 26 C.F.R. § 1.62-2(d)(3) (emphasis added). Therefore, we decline to find Shotgun in substantial compliance. D. Penalties Shotgun appeals penalties upheld by the district court on the ground that it reasonably relied on the advice of its outside accountant, Robert Borelli. In general, “[w]hen an accountant ... advises a taxpayer on a matter of tax law, such as whether liability exists, it is reasonable for the taxpayer to rely on that advice.” Van Camp & Bennion v. United States, 251 F.3d 862, 868 (9th Cir.2001) (quoting United States v. Boyle, 469 U.S. 241, 251, 105 S.Ct. 687, 83 L.Ed.2d 622 (1985) (alteration in original)); see also Boyle, 469 U.S. at 251, 105 S.Ct. 687 (“Most taxpayers are" }, { "docid": "13984027", "title": "", "text": "AAR if it substantially complied with the requirements for a partner AAR. We disagree with petitioners, however, that their amended return substantially complied with those requirements. The substantial compliance doctrine is a narrow equitable doctrine that courts may apply to avoid hardship where a party establishes that the party intended to comply with a provision, did everything reasonably possible to comply with the provision, but did not comply with the provision because of a failure to meet the provision’s specific requirements. See Sawyer v. County of Sonoma, 719 F.2d 1001, 1007-1008 (9th Cir. 1983); Fischer Indus., Inc. v. Commissioner, 87 T.C. 116, 122 (1986), affd. 843 F.2d 224 (6th Cir. 1988); see also Credit Life Ins. Co. v. United States, 948 F.2d 723, 726-727 (Fed. Cir. 1991); Prussner v. United States, 896 F.2d 218, 224 (7th Cir. 1990); Estate of Chamberlain v. Commissioner, T.C. Memo. 1999-181, affd. 9 Fed. Appx. 713 (9th Cir. 2001). The record does not establish that petitioners intended to file the amended return as a partner AAR. The amended return was professionally prepared for petitioners, whom we consider sophisticated and financially adept individuals, and indicated that petitioners were amending their individual income tax return merely to conform the return to amended Schedules K-l received from H&S Ventures. The amended return did not include a copy of any of the amended Schedules K-l, and it did not include a Form 8082 that would indicate that petitioners were filing the amended return as other than an amended return. The amended return further stressed the word “amended” on each of its pages and included a copy of petitioners’ Form 1040 for 2003, both as originally filed and as amended by the amended return. We also note that petitioners asserted for the first time that the amended return should be considered a partner AAR only after receiving respondent’s motion now before us. The requisite intent needed to be present contemporaneously with the filing of the partner AAR, not later when petitioners believed it to be more advantageous to have had that intent initially. Nor did the amended return substantially comply" }, { "docid": "18142970", "title": "", "text": "although not signed by the partner making the election, the petition was signed by counsel for that partner. The Bedrosians argue that it would be “untenable” to hold them to the requirements of making a proper election because they had not received actual notice within the 45-day period within which to make such an election. This amounts to rearguing the Stone Canyon Partners case that we already decided and that the Court of Appeals for the Ninth Circuit already affirmed. Stone Canyon Partners v. Commissioner, T.C. Memo. 2007-377. Actual notice is not the standard; the standard is whether the IRS met the requirements for sending proper notice. We already held that it did, and the Court of Appeals already affirmed our decision in that case. Recognizing that the Bedrosians did not make a proper election, the proposed report turns to the doctrine of substantial compliance, correctly setting forth the standard. The proposed report states: The substantial compliance doctrine is a narrow equitable doctrine that courts use to avoid taxpayer hardship if the taxpayer establishes that he or she intended to comply with a provision, did everything reasonably possible to comply with the provision, but did not comply with the provision because of a failure to meet the provision’s specific requirements. [Proposed report at 13-14 (citing Samueli v. Commissioner, 132 T.C. 336, 345 (2009), Sawyer v. Cnty. of Sonoma, 719 F.2d 1001, 1007-1008 (9th Cir. 1983), and Fischer Indus., Inc. v. Commissioner, 87 T.C. 116, 122 (1986), aff’d, 843 F.2d 224 (6th Cir.1988)).] The proposed report correctly notes that the manner in which the election is made is regulatory, not statutory, and thus strict compliance is not required. Id. at 14-15. In doing so, however, the proposed report states that “the Court has found that the documents submitted in lieu of a formal election must ‘evidence an affirmative intent on taxpayer’s part to make the required election and be bound thereby.’” Id. at 17 (quoting Fischer Indus., Inc. & Subs. v. Commissioner, 87 T.C. at 122). But the proposed report does not address this affirmative intent requirement in its substantial compliance" }, { "docid": "13082570", "title": "", "text": "to that election and its statutory consequences.” The irrevocable election necessary to fulfill the essence of the statute was simply never made. Taxpayers cite several cases which they argue establish that a binding election may be made if facts, though unknown to the Commissioner from the face of the return, make it clear that the taxpayer intended the election. It is only by tortuous inference, however, that the cited eases support this proposition; at any rate, all are readily distinguishable from the present situation. In both the principal cases cited, American Air Filter Co. v. Commissioner, 81 T.C. 709 (1983), and Taylor v. Commissioner, 67 T.C. 1071 (1977), the court examined the relevant statutes and found that the election statements required by the applicable regulations were procedural or directory, and did not go to the essence of the statutes involved. Since an election statement was not prerequisite to substantial compliance in either case, neither asks whether taxpayers made a binding election by acts or omissions the Commissioner was unaware of. Columbia Iron & Metal Co. v. Commissioner, 61 T.C. 5 (1973), also cited by taxpayers, did not involve the failure to provide an election; the applicable regulation required only that the taxpayer make the election by simply reporting a charitable contribution on his tax form, which taxpayer did. The sole issue in the case was whether the failure to provide information supplemental to the election itself in a separate statement, as required by the regulation, was procedural or of the essence of the statute. Because the return on its face contained the required election, Columbia Steel cannot support taxpayers’ proposition that acts or omissions not communicated to the Commissioner may constitute a binding election. Finally, taxpayers cite two other cases which did not involve substantial compliance at all. The first, Reaver v. Commissioner, 42 T.C. 72 (1964), which involved an election to report a sale on the installment method, is totally inapposite, since neither the statute nor regulation in issue required the taxpayer to elect the installment method in a timely filed return. The Reaver court held that under the" }, { "docid": "18142974", "title": "", "text": "Internal Revenue Code and have found that, absent a formal election, a submitted return and its attached schedules must evidence an affirmative intent on taxpayer’s part to make the required election and be bound thereby. Failure to manifest such intent has repeatedly resulted in taxpayer’s alleged election being rejected.” * * * [Fischer Indus., Inc. v. Commissioner, 87 T.C. at 122 (quoting Atl. Veneer Corp. v. Commissioner, 85 T.C. 1075, 1082-1083 (1985), aff’d, 812 F.2d 158 (4th Cir. 1987)); citations omitted.] In that case, the Court noted that an election can, in some situations be made on an amended return, stating that “if the circumstances necessitating an election arise after the filing of an original return, [the election can be made] as soon as practicable on an amended return.” Id. In the case before us, the purported election does not appear on a return but on the petition filed in this Court. If we were to apply the standard from Fischer in this case, we would ask whether the Bedrosians’ intent to elect out of TEFRA appeared on either the original petition filed in this case or “as soon as practicable on an amended” petition. Again, no such intent appears on the original petition. The Bedrosians first raised the notion of an election under section 6223(e) at least 33 months after they became aware of the FPAA. In the interim, Stone Canyon and the Bedrosians had lost jurisdictional arguments in both this Court and in the Court of Appeals for the Ninth Circuit. This was not “as soon as practicable”; this was with the benefit of hindsight. And an attempt to benefit from hindsight weighs against a finding of substantial compliance. Taylor v. Commissioner, 67 T.C. 1071, 1077-1078 (1977). Even if we look past the lack of intent, there is a lack of substantial compliance in the manner the election was made. The proposed report cites various cases that found substantial compliance where a taxpayer made a footfault in making an election. Such footfaults include making the election with the wrong IRS office, Hewlett-Packard Co. v. Commissioner, 67 T.C. 736," }, { "docid": "15824560", "title": "", "text": "hand, if the requirements are procedural or directory in that they are not of the essence of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance. See Lee R. Dunavant, supra; Georgie S. Cary, 41 T.C. 214 (1963); Columbia Iron & Metal Co., 61 T.C. 5 (1973). * * * Under the above test we must examine section 170 to determine whether the requirements of the regulations are mandatory or directory with respect to its statutory purpose. At the outset, it is apparent that the essence of section 170 is to allow certain taxpayers a charitable deduction for contributions made to certain organizations. It is equally apparent that the reporting requirements of section 1.170A-13, Income Tax Regs., are helpful to respondent in the processing and auditing of returns on which charitable deductions are claimed. However, the reporting requirements do not relate to the substance or essence of whether or not a charitable contribution was actually made. We conclude, therefore, that the reporting requirements are directory and not mandatory. See Taylor v. Commissioner, supra at 1078-1079. Furthermore, our conclusion is not altered by the fact that section 170(a) states that “A charitable contribution shall be allowed as a deduction only if verified under regulations prescribed by the Secretary.” See Cary v. Commissioner, 41 T.C. 214 (1963), where we held that a similar provision in section 302(c)(2)(A)(iii), requiring the filing of an agreement to notify the Commissioner of reacquisitions of stock within a 10-year period of a redemption under section 302(b)(3) in the manner prescribed by an applicable regulation, is directory rather than mandatory. The fact that a Code provision conditions the entitlement of a tax benefit upon compliance with respondent’s regulation does not mean that literal as opposed to substantial compliance is mandated. Cary v. Commissioner, supra. In the case before us there is no question that a donation of the two airships was made during the taxable year, that the subject of the donation was appraised at the amount claimed by petitioners" }, { "docid": "20744507", "title": "", "text": "Commissioner’s actions, however, we do not substitute our judgment for the Commissioner’s, nor do we permit taxpayers to carry their burden of proof by a mere preponderance of the evidence. Buzzetta Construction Corp. v. Commissioner, 92 T.C. at 648; Mailman v. Commissioner, 91 T.C. 1079, 1084 (1988); Pulver Roofing Co. v. Commissioner, 70 T.C. 1001, 1011 (1978). Taxpayers are required to clearly show that the Commissioner’s action was arbitrary, capricious, or without sound basis in fact. Knight-Ridder Newspapers v. United States, 743 F.2d 781, 788 (11th Cir. 1984); Mailman v. Commissioner, 91 T.C. at 1084; Drazen v. Commissioner, 34 T.C. 1070, 1076 (1960). In the instant case, however, the path to finding that respondent has abused his discretion contains several obstacles, and petitioner has not pointed a way around all of them. First, respondent argues that, if we consider petitioner’s allegations with respect to the accounting change request, we would be required to “look behind” the notice of deficiency and examine respondent’s motives and administrative policy or procedures in order to make a finding that respondent’s action was arbitrary, capricious, or without sound basis in fact. Generally, we refuse to examine the Commissioner’s conduct in arriving at his determinátions, or to find a notice of deficiency to be invalid on such basis. Vallone v. Commissioner, 88 T.C. 794, 806 (1987); Riland v. Commissioner, 79 T.C. 185, 200-202 (1982); Estate of Brimm v. Commissioner, 70 T.C. 15; 22 (1978); Greenberg’s Express, Inc. v. Commissioner, 62 T.C. 324, 327-328 (1974). That is the case even where the record discloses procedural irregularities. Rosenberg v. Commissioner, 450 F.2d 529 (10th Cir. 1971), affg. a Memorandum Opinion of this Court; Church of Scientology of California v. Commissioner, 83 T.C. 381, 447 (1984), affd. 823 F.2d 1310 (9th Cir. 1987). We also have held that considering a taxpayer’s claim that the Cornims-.. sioner violated rules governing internal procedures for determining deficiencies constitutes an impermissible inquiry into respondent’s administrative policies and procedures. Flynn v. Commissioner, 40 T.C. 770, 773 (1963). Consideration of petitioner’s claim in the instant case, however, does not require an examination of the method" }, { "docid": "15824559", "title": "", "text": "tax or information returns of the donee, or a person specifically authorized to sign appraisal summaries by an official authorized to sign the tax or information returns of such donee. * * * Respondent contends that by not obtaining and attaching to their 1986 income tax return a written appraisal of the airships, petitioners have failed to satisfy the prerequisites to a charitable deduction under section 1.170A-13(c)(2)(i)(A) and (3), Income Tax Regs. On the other hand, petitioners contend that they substantially complied with the requirements of the applicable statute and, therefore, have qualified for the charitable deduction under the doctrine of substantial compliance the test for which is set forth in Taylor v. Commissioner, 67 T.C. 1071, 1077-1078 (1977), as follows: The critical question to be answered is whether the requirements relate “to the substance or essence of the statute.” Fred J. Sperapani, 42 T.C. 308, 331 (1964). If so, strict adherence to all statutory and regulatory requirements is a precondition to an effective election. Lee R. Dunavant, 63 T.C. 316 (1974). On the other hand, if the requirements are procedural or directory in that they are not of the essence of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance. See Lee R. Dunavant, supra; Georgie S. Cary, 41 T.C. 214 (1963); Columbia Iron & Metal Co., 61 T.C. 5 (1973). * * * Under the above test we must examine section 170 to determine whether the requirements of the regulations are mandatory or directory with respect to its statutory purpose. At the outset, it is apparent that the essence of section 170 is to allow certain taxpayers a charitable deduction for contributions made to certain organizations. It is equally apparent that the reporting requirements of section 1.170A-13, Income Tax Regs., are helpful to respondent in the processing and auditing of returns on which charitable deductions are claimed. However, the reporting requirements do not relate to the substance or essence of whether or not a charitable contribution was actually made. We" }, { "docid": "10801656", "title": "", "text": "1975 return. Respondent does not dispute the correctness of petitioners’ methodology or the accuracy of the values employed in so accounting for Mayfran’s inventory. Despite their failure to provide the required information, petitioners contend that Mayfran substantially complied with the required procedure (1) by using the LIFO method correctly on the 1975 return and on returns for each subsequent year, (2) by furnishing to respondent all information, records, and calculations pertaining to Mayfran’s change in inventory accounting when requested to do so during respondent’s audit of the 1975 return, and (3) by “perfecting” the election by filing on April 16, 1986, Form 970 with an amended return for 1975. Further, petitioners contend that to “disturb” Mayfran’s LIFO inventory accounting employed consistently and correctly for each of the years before the Court would be an “extreme and unwarranted” sanction. In support of their position that they have substantially complied with the procedures for electing LIFO, petitioners rely heavily on the absence of any time specified by the regulations for making the election. Relying on Roy H. Park Broadcasting, Inc. v. Commissioner, 78 T.C. 1093 (1982), petitioners contend that in the absence of a requirement that the election be filed with an original return, filing the Form 970 with an amended return fully satisfies the timeliness requirement of section 472. Although petitioners’ arguments are well crafted, we are unpersuaded that Mayfran made a timely election for 1975. In general, substantial compliance with election requirements entails, at a minimum, a clear expression of the taxpayer’s intention to elect appearing either on the original return or, if the circumstances necessitating an election arise after the filing of an original return, as soon as practicable on an amended return. Knight-Ridder Newspapers v. United States, 743 F.2d 781 (11th Cir. 1984); Atlantic Veneer Corp. v. Commissioner, 85 T.C. 1075 (1985). As we said in Atlantic Veneer Corp. v. Commissioner, supra at 1082-1083: We have examined the cases as to what constitutes a statement of election under various provisions of the Internal Revenue Code and have found that, absent a formal election, a submitted return and its" } ]

[ { "docid": "8823037", "title": "", "text": "California law for state-law claims. Finally, NCG has not demonstrated that the Court may abstain from exercising jurisdiction over this claim. Accordingly, the Court DENIES NCG’s motion to dismiss Plaintiffs’ FDCPA claim. Schreck and Stohlton joined in NCG’s motion. In their joinder, Schreck and Stohlton submit substantive arguments against Plaintiffs’ FDCPA claim against them. Schreck and Stohlton argue that Plaintiffs do not allege sufficient facts against them to hold them personally liable under the FDCPA. More specifically, they urge the Court to follow the rule adopted by the Seventh Circuit, that the corporate veil must be pierced before personal liability may be imposed on an officer. See Pettit v. Retrieval Masters Creditors Bureau, Inc., 211 F.3d 1057, 1059 (7th Cir.2000). However, although the Ninth Circuit has not addressed this issue yet, “[t]he Sixth Circuit and the majority of district courts that have considered this issue, including all such district courts in the Ninth Circuit, have concluded that employees can be held personally liable under the FDCPA” without piercing the corporate veil. Robinson v. Managed Accounts Receivables Corp., 654 F.Supp.2d 1051, 1059 (C.D.Cal.2009) (citing cases); see also Schwarm v. Craighead, 552 F.Supp.2d 1056, 1070 (E.D.Cal.2008) (citing cases). The Court agrees with the reasoning in Robinson and Schwarm and, thus, finds that employees may be held liable under the FDCPA without piercing the corporate veil. To allege a FDCPA claim against Schreck and Stohlton, Plaintiffs must allege that they (1) materially participated in collecting the debt at issue; (2) exercised control over the affairs of the business; (3) were personally involved in the collection of the debt at issue, or (4) were regularly engaged, directly or indirectly, in the collection of debts. See Schwarm, 552 F.Supp.2d at 1073. Plaintiffs have alleged facts sufficient to show that Schreck and Stohlton exercised control over the affairs of ACCS, and now NCG, and/or that they were regularly engaged, directly or indirectly, in the collection of debts. Accordingly, the Court will not dismiss Plaintiffs’ FDCPA claim against Schreck or Stohlton. C. LLCP’s Motion to Dismiss. 1. Plaintiffs’ RICO Claims. Plaintiffs assert a RICO claim under 18" } ]

[ { "docid": "21428540", "title": "", "text": "or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. 15 U.S.C. § 1692a(6). Attorneys who regularly engage in consumer debt collection activities are included in this definition. Heintz v. Jenkins, 514 U.S. 291, 299, 115 S.Ct. 1489, 1493, 131 L.Ed.2d 395 (1995); see also Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507, 1513 (9th Cir.1994) (attorney is “debt collector” if regularly engaged in collection of consumer debts); Crossley v. Lieberman, 868 F.2d 566, 570 (3d Cir.1989) (same). Both DeLoney & Associates and Richard DeLoney were “debt collectors” under the FDCPA. Between July 1994 and May 1995, CheckRite referred to DeLoney & Associates more than nine thousand dishonored checks written by Utah residents, and collection work performed for CheckRite accounted for one-third to one-half of the firm’s income. Further, as the, firm’s sole attorney, developer of the . “covenant not to sue” practice, author of the generic letters utilized by the firm, and supervisor of all of the firm’s collection activities, Mr. DeLoney was regularly engaged, directly and indirectly, in the collection of debts. Thus, he may be held personally liable under the FDCPA. See Blakemore v. Pekay, 895 F.Supp. 972, 977 (N.D.Ill.1995) (liability under FDCPA attaches to individual attorney and law firm where both met Act’s definition of “debt collector”); Teng v. Metropolitan Retail Recovery Inc., 851 F.Supp. 61, (E.D.N.Y.1994) (employee of “debt collector” liable under FDCPA if he or she is a “debt collector” within the statutory definition). Mr. DeLoney maintains that simply satisfying the definition of a “debt collector” does not trigger personal liability under the FDCPA. Rather, argues Mr. DeLoney, personal liability attaches only if the court may also pierce the protective veil afforded DeLoney & Associates under Utah law. See Utah Code Ann. § 48-2b-109(l). The little case law cited by Mr. DeLoney does not support his argument. In West v. Costen, 558 F.Supp. 564 (W.D.Va.1983), the court determined that the defendant, the president and majority shareholder of a collection agency, was a “debt collector” under the FDCPA. Id. at 585." }, { "docid": "10629175", "title": "", "text": "liable under the FDCPA. Robinson, 654 F.Supp.2d at 1061 (collecting cases). On .the other hand, the Seventh Circuit has held that employees cannot be held personally liable under the FDCPA unless the plaintiff can pierce the corporate veil. Id. District courts in the Ninth Circuit have followed the Sixth Circuit’s approach. See, e.g., Robinson, 654 F.Supp.2d at 1061; Schwarm, 552 F.Supp.2d at 1071-73; Townsend v. Nat’l Arbitration Forum, Inc., No. CV 09-9325-VBF(RNBx), 2012 WL 12736, at *12 (C.D.Cal. Jan. 4, 2012); Smyth v. Merchants Credit Corp., No. C11-1879RSL, 2012 WL 588744, at *2-*3 (W.D.Wash. Feb. 22, 2012). The court agrees with the reasoning in these cases, particularly that articulated in Schwarm. Accordingly, the court concludes that “because the FDCPA imposes personal, not derivative, liability, serving as a shareholder, officer, or director of a debt collecting corporation is not, in itself, sufficient to hold an individual liable as a ‘debt collector.’ ” Schwarm, 552 F.Supp.2d at 1073. Rather, the FDCPA “requires that the individual ‘regularly collect or attempt to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.’ ” Id. (quoting 15 U.S.C. § 1692a(6)) (alterations in Schwarm). Based on this standard, courts have found an individual personally liable if “the individual 1) materially participated in collecting the debt at issue; 2) exercised control over the affairs of the business; 3) was personally involved in the collection of the debt at issue; or 4) was regularly engaged, directly and indirectly, in the collection of debts.” Id. (internal quotations and citations omitted). Mr. Gordon asserts that he cannot be held personally liable under the FDCPA because there is no evidence that he was involved in the collection of Ms. Moritz’s debt. (Def. Mot. at 5-8.) In response, Ms. Moritz has submitted the following evidence in support of her argument that Mr. Gordon is individually liable under the FDCPA: Mr. Gordon requires all collectors to sign a memo stating that no one would leave a message for a debtor at a place of employment (3d Radbil Decl. Ex. C (Aylworth Dep. from McLain v. Daniel N." }, { "docid": "10035461", "title": "", "text": "P.C., 372 F.Supp.2d 615, 618 (D.Utah 2005). For example, the Eastern District of California has concluded that [b]y being directly involved in the day-to-day operation of Lundgren & Associates, including training and managing employees, and reviewing or supervising the review of all accounts, Lundgren was both directly and indirectly involved in Lundgren & Associates’ collection of debts. Given the plain language of the FDCPA, defendant Lundgren is a debt collector within the meaning of the FDCPA and can be held liable for any acts in which he directly or indirectly attempted to collect debts in violation of the FDCPA. Newman v. Checkrite Cal., Inc., 912 F.Supp. 1354, 1372 (E.D.Cal.1995) (referring to 15 U.S.C. § 1692a(6)). In another case, the Eastern District of New York found personal liability in part because “each employee is himself a ‘debt collector’ within the statutory definition, namely each is a ‘person’ in a business, ‘the principal purpose of which is the collection of any debts or who regularly collects or attempts to collect ... debts owed or due ... another.’ ” Teng v. Metro. Retail Recovery Inc., 851 F.Supp. 61, 67 (E.D.N.Y. 1994) (quoting 15 U.S.C. § 1692a(6)). The district court in Arizona, subsequent to the ACB Sales & Service, Inc. case from that district relied on by Marge-lefsky, has held that personal liability may be found where individual corporate officers “materially participated in the activities of [a debt collection agency] alleged to be collection activities.” Brink v. First Credit Res., 57 F.Supp.2d 848, 862 (D.Ariz. 1999). In other words, contrary to Margelefsky’s argument that he cannot be personally liable because he did not participate in sending the specific letter to Kistner, he may be personally liable on the basis of his participation in the debt collection activities of the LLC more generally. Most similar to the instant action is the case of Ditty v. CheckRite, Ltd., 973 F.Supp. 1320 (D.Utah 1997), in which the district court premised a finding of personal liability on the part of the sole member of a law firm LLC on the grounds that as the firm’s sole attorney, developer" }, { "docid": "7328278", "title": "", "text": "an operator of the facility.” Bestfoods, 524 U.S. at 55, 64-66, 118 S.Ct. 1876. The Court explained that, “[u]nder the plain language of the statute, any person who operates a polluting facility is directly liable for the costs of cleaning up the pollution ... regardless of whether that person is the facility’s owner.” Id. (citation omitted). Therefore, consistent with the district courts in this circuit that have addressed personal liability under the FDCPA and precedent addressing personal liability under CERCLA, this court concludes that a shareholder, officer, or director of a debt-collecting corporation may be held personally liable for FDCPA violations regardless of whether the plaintiff can pierce the corporate veil. Nonetheless, because the FDCPA imposes personal, not derivative, liability, serving as a shareholder, officer, or director of a debt collecting corporation is not, in itself, sufficient to hold an individual liable as a “debt collector.” Regardless of the employee’s rank within the company, § 1692a(6) requires that the individual “regularly colleet[ed] or attempted] to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). Based on this requirement, courts have found an individual personally hable if the individual 1) materially participated in collecting the debt at issue, del Campo v. Kennedy, 491 F.Supp.2d 891, 903 (N.D.Cal.2006); Brink v. First Credit Res., 57 F.Supp.2d 848, 862 (D.Ariz.1999); 2) “exercise[d] control over the affairs of [the] business, Piper v. Portnoff Law Assocs., 274 F.Supp.2d 681, 689-90; 3) was “personally involved in the collection of the debt at issue,” Musso v. Seiders, 194 F.R.D. 43, 46 (D.Conn.1999); or 4) “was ‘regularly engaged, directly and indirectly, in the collection of debts.’ ” Kistner v. Law Offices of Michael P. Margelefsky, L.L.C., 518 F.3d 433, 438 (6th Cir.2008) (quoting Ditty v. CheckRite, Ltd., 973 F.Supp. 1320, 1337 (D.Utah 1997)). Under any of the aforementioned standards, the undisputed facts show that Craighead “regularly collected] or attempted] to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). DATS’ collection activities at dispute in this case" }, { "docid": "10629176", "title": "", "text": "due or asserted to be owed or due another.’ ” Id. (quoting 15 U.S.C. § 1692a(6)) (alterations in Schwarm). Based on this standard, courts have found an individual personally liable if “the individual 1) materially participated in collecting the debt at issue; 2) exercised control over the affairs of the business; 3) was personally involved in the collection of the debt at issue; or 4) was regularly engaged, directly and indirectly, in the collection of debts.” Id. (internal quotations and citations omitted). Mr. Gordon asserts that he cannot be held personally liable under the FDCPA because there is no evidence that he was involved in the collection of Ms. Moritz’s debt. (Def. Mot. at 5-8.) In response, Ms. Moritz has submitted the following evidence in support of her argument that Mr. Gordon is individually liable under the FDCPA: Mr. Gordon requires all collectors to sign a memo stating that no one would leave a message for a debtor at a place of employment (3d Radbil Decl. Ex. C (Aylworth Dep. from McLain v. Daniel N. Gordon, P.C.) at 114:12-15:6); Mr. Gordon (along with other attorneys at DNG) drafts FDCPA compliance-related materials (id. Ex. D (Aylworth Dep. from Mandelas v. Daniel N. Gordon, P.C.) at 127:23-128:2); Mr. Gordon solicits new clients (2d Radbil Decl. Ex. 4 (Aylworth Dep. from McLain v. Daniel N. Gordon, P.C.) at 42:10-43:9; id. Ex. 2 (Nelson Aft) ¶ 22); and Mr. Gordon convinces clients that he does not need to be licensed in Washington (id. Ex. 2 ¶ 22). (Resp. to Def. Mot. at 21-23.) Ms. Moritz argues that these actions both directly and indirectly caused the alleged violations at issue here. (Id. at 22-23.) Viewing the evidence in Ms. Moritz’s favor, the court concludes that she has failed to raise a genuine issue of material fact as to Mr. Gordon’s liability for any of the alleged FDCPA' violations. First, because Ms. Moritz does not allege or present evidence that Mr. Gordon or DNG employees left improper messages for her at her place of employment, the fact that Mr. Gordon drafted a policy forbidding employees from" }, { "docid": "7636010", "title": "", "text": "Credit further argues that Fayazi and Merkwan may not be considered “debt collectors” under the FDCPA. First Credit explains that the district courts are not all in agreement on the issue, citing two cases involving the same defendant in which the courts reached opposite conclusions. Ernst v. Jesse L. Riddle, P.C., 964 F.Supp. 213 (M.D.La.1997) (court refused to pierce the corporate veil to hold individuals liable); Pikes v. Riddle, 38 F.Supp.2d 639 (N.D.Ill.1998) (an individual personally involved in debt collection practices is within meaning of “debt collector”). While it is true that the courts are not in agreement, the decision of the district court in Louisiana appears to be an anomaly. See Pikes v. Riddle, 38 F.Supp.2d 639 (N.D.Ill.1998) (holding that an individual car be a debt collector under the FDCPA); Pope v. Vogel II, No. 97 C 1835, 1998 WL 111576, at *5 (N.D.Ill. Mar.5, 1998) (same); Ditty v. CheckRite, Ltd., Inc., 973 F.Supp. 1320 (D.Utah 1997) (same); Newman v. Checkrite California, Inc., 912 F.Supp. 1354 (E.D.Cal.1995) (same); West v. Costen, 558 F.Supp. 564 (W.D.Va.1983) (same). The language of the FDCPA is clear. A “debt collector” is “any person who ... regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). First Credit argues that this cannot apply to Fayazi and Merk-wan because they were merely employees of First Credit acting in their capacities as employees. A court in the District of Arizona was presented with the issue in United States v. ACB Sales & Serv., Inc., 590 F.Supp. 561 (D.Ariz.1984). The district court found that a corporate director may be liable pursuant to the FDCPA only for violations in which he materially participated. Id. at 573 (citing Murphy Tugboat Co. v. Shipowners & Merchants Towboat Co., Ltd., 467 F.Supp. 841, 852 (N.D.Cal.1979) aff'd sub nom. Murphy Tugboat Co. v. Crowley, 658 F.2d 1256 (9th Cir.1981), cert. denied, 455 U.S. 1018, 102 S.Ct. 1713, 72 L.Ed.2d 135 (1982)). The district court in Murphy relied on the basic principles of tort and agency, namely that" }, { "docid": "14896950", "title": "", "text": "v. Emporia Credit Service, Inc., 981 F.Supp. 411, 414 (E.D.Va.1997). Plaintiff and Defendants agree that Plaintiff is a consumer and that the alleged debt arose out of a transaction entered into for personal purposes. They disagree as to the last two elements of the FDCPA claim. 1. Definition of Debt Collector In order to be liable for an FDCPA violation, a defendant must be a debt collector. § 1692(e). The FDCPA defines the term “debt collector” as any person whose principal purpose of business is to collect debts or any person who regularly collects or attempts to collect, directly or indirectly, debts owed or due to another. § 1692a(6). The term “debt collector” is not limited to formal debt collection agencies and can, for example, apply to a lawyer who regularly, through litigation, tries to enforce consumer debts. Heintz v. Jenkins, 514 U.S. 291, 292, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995). The FDCPA also carves out some exceptions to the term “debt collector.” § 1692a(6)(A)-(F). It excludes “any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt.” § 1692a(6)(D). However, a person “who goes beyond being merely a messenger in serving legal process and engages in prohibited abusive or harassing activities to force an individual to repay a debt is no longer exempt under the legal process server exception.” Flamm v. Sarner & Associates, P.C., No. 02-4302, 2002 WL 31618443, at *5 (E.D.Pa. Nov. 6, 2002). a. Debt Collector Any person who regularly collects or attempts to collect debt, directly or indirectly, is a “debt collector” within the FDCPA. § 1692a(6). In Romine v. Diversified Collection Servs., 155 F.3d 1142, 1146 (9th Cir.1998), the Ninth Circuit recognized that “one need not gain possession of a debt, or personally benefit financially from the satisfaction of a debt, in order to assume liability as a ‘debt collector’ under the FDCPA.” In Romine, defendant Western Union sent debtors notices that they had received personal telegrams, but when debtors called to retrieve their messages, they required the debtor to first" }, { "docid": "10629173", "title": "", "text": "of the Wade court’s comments. See Wade, 87 F.3d at 1100 n. 3. Therefore, the court declines to follow the district court decisions relied upon by Ms. Moritz. Rather, the court must determine whether DNG’s actions constitute independent violations of the FDCPA. See Wade, 87 F.3d at 1100-01; Taylor, 471 F.Supp.2d at 1062. Ms. Moritz points to a specific action taken by DNG that may be a violation of Washington law: failing to itemize the amount of Ms. Moritz’s debt in its collection letters to her. (See Resp. to Def. Mot. at 11.) Ms. Moritz does not assert, however, that such a failure is an independent violation of the FDCPA, and the court has discerned no such violation based on its review of the statute. See generally 15 U.S.C. §§ 1692a, 1692g; see also 15 U.S.C. § 1692g (setting forth the requirements for the initial written communication with a consumer, which does not include the itemization required by Washington law); Dunlap v. Credit Protection Ass’n, L.P., 419 F.3d 1011, 1012 (9th Cir.2005) (per curiam) (concluding that the notice provisions set forth in 15 U.S.C. § 1692g are sufficient to apprise debtors of their rights). When viewed from the perspective of the least sophisticated debtor and in the light most favorable to Ms. Moritz, no reasonable jury could conclude that the omission from the letters of the itemized amounts constitutes an unconscionable or unfair attempt to collect a debt under the FDCPA. Accordingly, the corat concludes that DNG is entitled to summary judgment on Ms. Moritz’s 15 U.S.C. 1692f claim. d. FDCPA Claims Against Mr. Gordon The Ninth Circuit has not yet decided the question of whether an individual employee or shareholder, officer, or director of a debt collecting corporation may be held personally liable as a “debt collector” under the FDCPA. See Robinson v. Managed Accounts Receivables Corp., 654 F.Supp.2d 1051, 1061 (C.D.Cal.2009); Schwarm v. Craighead, 552 F.Supp.2d 1056, 1073 (E.D.Cal.2008). There is a split among persuasive authority. The Sixth Circuit and the majority of district courts that have considered the issue have concluded that employees can be held personally" }, { "docid": "23297934", "title": "", "text": "The FDCPA is designed to protect against abusive debt collection practices which would likely disrupt a debtor’s life. Mace v. Van Ru Credit Corp., 109 F.3d 338, 343 (7th Cir.1997). Its provisions generally apply only to debt collectors. See 15 U.S.C. § 1692(e); Transamerica Fin. Servs., Inc. v. Sykes, 171 F.3d 553, 554 n. 1 (7th Cir.1999); Whitaker v. Ameritech Corp., 129 F.3d 952, 958 (7th Cir.1997). A “debt collector” is defined as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). Pettit argues that Russell Fuchs — as the largest shareholder and president of Retrieval Masters — is a debt collector under the terms of the FDCPA, and thus is personally liable for any violations of the Act perpetrated by Retrieval, or at least for those violations in which he was intimately involved. The district court rejected this argument and held that Fuchs is not liable under the FDCPA because he exercised little or no day-to-day control over Retrieval Masters. Pettit v. Retrieval Masters Creditors Bureau, Inc., 42 F.Supp.2d 797, 805 (N.D.Ill.1999). But under our holding in White v. Goodman, the extent of control exercised by an officer or shareholder is irrelevant to determining his liability under the FDCPA. 200 F.3d 1016, 1019 (7th Cir.2000). Because such individuals do not become “debt collectors” simply by working for or owning stock in debt collection companies, we held that the Act does not contemplate personal liability for shareholders or employees of debt collection companies who act on behalf of those companies, except perhaps in limited instances where the corporate veil is pierced. Id.; Aubert v. American Gen. Fin., Inc., 137 F.3d 976, 979-80 (7th Cir.1998). Rather, the FDCPA has utilized the principle of vicarious liability. See Wadlington v. Credit Acceptance Corp., 76 F.3d 103, 108 (6th Cir.1996); Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1516" }, { "docid": "7328273", "title": "", "text": "FDCPA. Kistner v. Law Offices of Michael P. Margelefsky, L.L.C., 518 F.Sd 433, 437-38 (6th Cir. 2008); del Campo v. Kennedy, 491 F.Supp.2d 891, 903 (N.D.Cal.2006); Brumbelow v. Law Offices of Bennett & Deloney, P.C., 372 F.Supp.2d 615, 618-21 (D.Utah 2005); Albanese v. Portnoff Law Assocs., Ltd., 301 F.Supp.2d 389, 400 (E.D.Pa.2004); Musso v. Seiders, 194 F.R.D. 43, 46-47 (D.Conn.1999); Brink v. First Credit Res., 57 F.Supp.2d 848, 861-62 (D.Ariz.1999); Pikes v. Riddle, 38 F.Supp.2d 639, 640 (N.D.Ill.1998); Ditty v. CheckRite, Ltd., 973 F.Supp. 1320, 1337-38 (D.Utah 1997); Newman v. Checkrite Cal., Inc., 912 F.Supp. 1354, 1372 (E.D.Cal.1995); Teng v. Metro. Retail Recovery Inc., 851 F.Supp. 61, 67 (E.D.N.Y.1994). On the other hand, the Seventh Circuit has held that, regardless of an individual’s personal involvement with the corporation’s debt collecting activities, a shareholder or officer of a debt collecting corporation cannot be personally liable unless the plaintiff pierces the corporate veil. White v. Goodman, 200 F.3d 1016, 1019 (7th Cir.2000) (concluding that the corporate form protects shareholders from personal liability and that, in naming them, plaintiffs “should have been sanctioned for what amounts to malicious prosecution”); Pettit v. Retrieval Masters Creditor Bureau, Inc., 211 F.3d 1057, 1059 (7th Cir.2000) (“[U]nder ... White v. Goodman, the extent of control exercised by an officer or shareholder is irrelevant to determining his liability under the FDCPA.”); see also Ernst v. Jesse L. Riddle, P.C., 964 F.Supp. 213, 216 (M.D.La.1997) (noting that the FDCPA lacks language suggesting that “Congress intended the act to supplant state corporate law which generally limits then liability of a corporation’s shareholders, officers, and directors ... ”). While the Ninth Circuit has not yet addressed the issue, this court will adhere to the conclusion reached by the Sixth Circuit and the majority of district courts because it is more consistent with the FDCPA’s broad language. The FDCPA expressly prohibits certain acts by “any person ... in any business.” 15 U.S.C. § 1692a(6) (emphasis added). Without distinguishing between an employee’s position within the corporation, the Staff Commentary also explains that “any person” includes an “employee of a corporation.” 53 Fed.Reg. 50102" }, { "docid": "20203672", "title": "", "text": "corporate veil. (Dec. 5, 2006 Order at 903-04.) Despite the Court’s clear ruling on the issue as a matter of law, Defendants renew their contention in the present motion in asserting that Plaintiffs have failed to raise a triable issue that any individual Defendant is an alter ego of ACCS. As in its prior Order, the Court here follows the numerous courts that have held that under the plain language of the FDCPA, an individual can be considered a “debt collector” and be held personally liable without piercing the corporate veil if the individual materially participated in the debt collection activities. Although the Ninth Circuit has yet to address the issue directly, the Sixth Circuit has recently held that the corporate structure does not insulate shareholders, officers, or directors from personal liability under the FDCPA. Kistner v. Law Offices of Michael P. Margelefsky, LLC, 518 F.3d 433, 437-38 (6th Cir.2008). While the Court acknowledges that there is a split of authority on the issue of individual liability of corporate officers and directors under the FDCPA, there has been no change in the law since the Court issued its December 5, 2006 Order that would lead the Court to reconsider its prior holding and adopt the Seventh Circuit’s view. See, e.g., White v. Goodman, 200 F.3d 1016, 1019 (7th Cir.2000). Thus, the Court finds that individual Defendants may be liable for violating the FDCPA regardless of whether Plaintiffs can establish that they are alter egos of ACCS. b. Material Participation in Debt Collection Activities At issue is whether there is a triable issue of fact as to whether Defendants Mealing and Hasney materially participated in the debt collection activities of ACCS, and thus may be held individually liable under the FDCPA. Courts have found individuals personally liable as debt collectors under the FDCPA when they (1) materially participated in collecting a debt, (2) “exercise[d] control over the affairs of [a debt collection] business,” or (3) were “regularly engaged, directly and indirectly, in the collection of debts.” Kistner, 518 F.3d at 438. i. Defendant Mealing Plaintiffs present the following evidence, inter alia," }, { "docid": "7636011", "title": "", "text": "(W.D.Va.1983) (same). The language of the FDCPA is clear. A “debt collector” is “any person who ... regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). First Credit argues that this cannot apply to Fayazi and Merk-wan because they were merely employees of First Credit acting in their capacities as employees. A court in the District of Arizona was presented with the issue in United States v. ACB Sales & Serv., Inc., 590 F.Supp. 561 (D.Ariz.1984). The district court found that a corporate director may be liable pursuant to the FDCPA only for violations in which he materially participated. Id. at 573 (citing Murphy Tugboat Co. v. Shipowners & Merchants Towboat Co., Ltd., 467 F.Supp. 841, 852 (N.D.Cal.1979) aff'd sub nom. Murphy Tugboat Co. v. Crowley, 658 F.2d 1256 (9th Cir.1981), cert. denied, 455 U.S. 1018, 102 S.Ct. 1713, 72 L.Ed.2d 135 (1982)). The district court in Murphy relied on the basic principles of tort and agency, namely that “an officer or director is, in general, personally liable for all torts which he authorizes or directs or in which he participates, notwithstanding that he acted as an agent of the corporation and not on his own behalf.” Murphy Tugboat Co., 467 F.Supp. at 852 (quoting Ballantine, Corporations § 112 (rev. ed.1946)) (interpreting Restatement (Second) of Agency § 343 (1957)). Applying these principles, the district court in ACB Sales & Service, Inc. found that the corporate directors were not “debt collectors” because they had not “materially participated” in the collection activities. ACB Sales & Service, Inc., 590 F.Supp. at 575. A district court in California addressed the issue more recently. See Newman v. Checkrite California, Inc., 912 F.Supp. 1354, 1372-1373 (E.D.Cal.1995). The California district court held that the manager of a law firm who engaged in collection of debts was a “debt collector” because he was a person who “regularly attempt[ed] to collect, directly or indirectly, debts owed.” Id. at 1372 (quoting 15 U.S.C. § 1692a(6) (emphasis added)). Using either the plain language of statute" }, { "docid": "10035462", "title": "", "text": "” Teng v. Metro. Retail Recovery Inc., 851 F.Supp. 61, 67 (E.D.N.Y. 1994) (quoting 15 U.S.C. § 1692a(6)). The district court in Arizona, subsequent to the ACB Sales & Service, Inc. case from that district relied on by Marge-lefsky, has held that personal liability may be found where individual corporate officers “materially participated in the activities of [a debt collection agency] alleged to be collection activities.” Brink v. First Credit Res., 57 F.Supp.2d 848, 862 (D.Ariz. 1999). In other words, contrary to Margelefsky’s argument that he cannot be personally liable because he did not participate in sending the specific letter to Kistner, he may be personally liable on the basis of his participation in the debt collection activities of the LLC more generally. Most similar to the instant action is the case of Ditty v. CheckRite, Ltd., 973 F.Supp. 1320 (D.Utah 1997), in which the district court premised a finding of personal liability on the part of the sole member of a law firm LLC on the grounds that as the firm’s sole attorney, developer of the “covenant not to sue” practice, author of the generic letters utilized by the firm, and supervisor of all of the firm’s collection activities, Mr. DeLoney was regularly engaged, directly and indirectly, in the collection of debts. Id. at 1336-37. The court in Ditty concluded that the defendant satisfied the FDCPA definition of “debt collector” and could therefore be held liable without “pierc[ing] the protective veil afforded [LLCs] under Utah law.” Id. at 1337. In discussing the Ditty holding, the court in Brumbelow explained that “[t]here is no doubt that in a generic sense a person who authors collection letters, supervises collection activities, and is the sole attorney in a debt collection firm is a ‘debt collector’ as defined by the FDCPA.” Brumbelow, 372 F.Supp.2d at 618. The court in Brumbelow also articulated a compelling argument against the Seventh Circuit’s conclusion that the FDCPA employs the same vicarious-liability principles found in Title VII: Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act both forbid discrimination by “an" }, { "docid": "7328272", "title": "", "text": "FDCPA, a defendant must qualify as a “debt collector,” which § 1692a defines as “any person who uses any instrumentality of interstate commerce ... in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). The Staff Commentary on the FDCPA explains that this definition includes “[e]m-ployees of a debt collection business, including a corporation, partnership, or other entity whose business is the collection of debts owed another.” 53 Fed.Reg. 50102 (Dec. 13,1998). When an employee of a debt collection corporation is also a shareholder, officer, or director of that corporation, there is a split of authority about whether the corporate form insulates the shareholder, officer, or director from personal liability under the FDCPA. Specifically, the Sixth Circuit and most district courts that have addressed the issue have held that the corporate structure does not insulate shareholders, officers, or directors from personal liability under the FDCPA. Kistner v. Law Offices of Michael P. Margelefsky, L.L.C., 518 F.Sd 433, 437-38 (6th Cir. 2008); del Campo v. Kennedy, 491 F.Supp.2d 891, 903 (N.D.Cal.2006); Brumbelow v. Law Offices of Bennett & Deloney, P.C., 372 F.Supp.2d 615, 618-21 (D.Utah 2005); Albanese v. Portnoff Law Assocs., Ltd., 301 F.Supp.2d 389, 400 (E.D.Pa.2004); Musso v. Seiders, 194 F.R.D. 43, 46-47 (D.Conn.1999); Brink v. First Credit Res., 57 F.Supp.2d 848, 861-62 (D.Ariz.1999); Pikes v. Riddle, 38 F.Supp.2d 639, 640 (N.D.Ill.1998); Ditty v. CheckRite, Ltd., 973 F.Supp. 1320, 1337-38 (D.Utah 1997); Newman v. Checkrite Cal., Inc., 912 F.Supp. 1354, 1372 (E.D.Cal.1995); Teng v. Metro. Retail Recovery Inc., 851 F.Supp. 61, 67 (E.D.N.Y.1994). On the other hand, the Seventh Circuit has held that, regardless of an individual’s personal involvement with the corporation’s debt collecting activities, a shareholder or officer of a debt collecting corporation cannot be personally liable unless the plaintiff pierces the corporate veil. White v. Goodman, 200 F.3d 1016, 1019 (7th Cir.2000) (concluding that the corporate form protects shareholders from personal liability and that, in naming them," }, { "docid": "10629174", "title": "", "text": "that the notice provisions set forth in 15 U.S.C. § 1692g are sufficient to apprise debtors of their rights). When viewed from the perspective of the least sophisticated debtor and in the light most favorable to Ms. Moritz, no reasonable jury could conclude that the omission from the letters of the itemized amounts constitutes an unconscionable or unfair attempt to collect a debt under the FDCPA. Accordingly, the corat concludes that DNG is entitled to summary judgment on Ms. Moritz’s 15 U.S.C. 1692f claim. d. FDCPA Claims Against Mr. Gordon The Ninth Circuit has not yet decided the question of whether an individual employee or shareholder, officer, or director of a debt collecting corporation may be held personally liable as a “debt collector” under the FDCPA. See Robinson v. Managed Accounts Receivables Corp., 654 F.Supp.2d 1051, 1061 (C.D.Cal.2009); Schwarm v. Craighead, 552 F.Supp.2d 1056, 1073 (E.D.Cal.2008). There is a split among persuasive authority. The Sixth Circuit and the majority of district courts that have considered the issue have concluded that employees can be held personally liable under the FDCPA. Robinson, 654 F.Supp.2d at 1061 (collecting cases). On .the other hand, the Seventh Circuit has held that employees cannot be held personally liable under the FDCPA unless the plaintiff can pierce the corporate veil. Id. District courts in the Ninth Circuit have followed the Sixth Circuit’s approach. See, e.g., Robinson, 654 F.Supp.2d at 1061; Schwarm, 552 F.Supp.2d at 1071-73; Townsend v. Nat’l Arbitration Forum, Inc., No. CV 09-9325-VBF(RNBx), 2012 WL 12736, at *12 (C.D.Cal. Jan. 4, 2012); Smyth v. Merchants Credit Corp., No. C11-1879RSL, 2012 WL 588744, at *2-*3 (W.D.Wash. Feb. 22, 2012). The court agrees with the reasoning in these cases, particularly that articulated in Schwarm. Accordingly, the court concludes that “because the FDCPA imposes personal, not derivative, liability, serving as a shareholder, officer, or director of a debt collecting corporation is not, in itself, sufficient to hold an individual liable as a ‘debt collector.’ ” Schwarm, 552 F.Supp.2d at 1073. Rather, the FDCPA “requires that the individual ‘regularly collect or attempt to collect, directly or indirectly, debts owed or" }, { "docid": "7328279", "title": "", "text": "to be owed or due another.” 15 U.S.C. § 1692a(6). Based on this requirement, courts have found an individual personally hable if the individual 1) materially participated in collecting the debt at issue, del Campo v. Kennedy, 491 F.Supp.2d 891, 903 (N.D.Cal.2006); Brink v. First Credit Res., 57 F.Supp.2d 848, 862 (D.Ariz.1999); 2) “exercise[d] control over the affairs of [the] business, Piper v. Portnoff Law Assocs., 274 F.Supp.2d 681, 689-90; 3) was “personally involved in the collection of the debt at issue,” Musso v. Seiders, 194 F.R.D. 43, 46 (D.Conn.1999); or 4) “was ‘regularly engaged, directly and indirectly, in the collection of debts.’ ” Kistner v. Law Offices of Michael P. Margelefsky, L.L.C., 518 F.3d 433, 438 (6th Cir.2008) (quoting Ditty v. CheckRite, Ltd., 973 F.Supp. 1320, 1337 (D.Utah 1997)). Under any of the aforementioned standards, the undisputed facts show that Craighead “regularly collected] or attempted] to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). DATS’ collection activities at dispute in this case were its sole source of income, therefore, as a director and president, the only profit-generating activity Craighead oversaw was collecting debts pursuant to contracts with the district attorneys’ offices. While Craighead allegedly did not draft the form collection letters DATS used, he was one of only three individuals that had final authority over DATS’ collection procedures, which relied on the form letters. (Craighead Dep. 11:2-8); see also Albanese v. Portnoff Law Assocs., Ltd., 301 F.Supp.2d 389, 400 (E.D.Pa.2004) (“[T]he President ... whose duties include supervising the staff and the overall operations of the firm, occupies the precise position that the Pollice court held was exposed to individual FDCPA liability ....”). Craighead also developed the automated software DATS used and was solely responsible for managing and maintaining the automated computer system that implemented DATS’ collection program. (Craighead Dep. 20:19-25.) DATS also relied exclusively on Craig-head to form relationships with merchants, negotiate contracts with the district attorneys’ offices, and serve as merchants and district attorneys’ offices’ contact at DATS. (Id. at 20:12-13, 45:3-5, 140:10-12); Kline Dep. 22:6-14" }, { "docid": "10035460", "title": "", "text": "shown for piercing the corporate veil.” Id. at 1019. Later, in Pettit v. Retrieval Masters Creditors Bureau, Inc., 211 F.3d 1057 (7th Cir.2000), the Seventh Circuit clarified that “under our holding in White v. Goodman, the extent of control exercised by an officer or shareholder is irrelevant to determining his liability under the FDCPA.” Id. at 1059. According to the court in Pettit, officers and shareholders “do not become 'debt collectors’ simply by working for or owning stock in debt collection companies.” Id. The Seventh Circuit explained that “the FDCPA has utilized the principle of vicarious liability” and, “Cjjust as in the Title VII context, the debt collection company answers for its employees’ violations of the statute.” Id. On the other side of the split are a series of district court decisions concluding that “where a shareholder, officer, or employee of a corporation is personally involved in the debt collection at issue, he may be held personally liable as a debt collector without piercing the corporate veil.” Brumbelow v. Law Offices of Bennett and Deloney, P.C., 372 F.Supp.2d 615, 618 (D.Utah 2005). For example, the Eastern District of California has concluded that [b]y being directly involved in the day-to-day operation of Lundgren & Associates, including training and managing employees, and reviewing or supervising the review of all accounts, Lundgren was both directly and indirectly involved in Lundgren & Associates’ collection of debts. Given the plain language of the FDCPA, defendant Lundgren is a debt collector within the meaning of the FDCPA and can be held liable for any acts in which he directly or indirectly attempted to collect debts in violation of the FDCPA. Newman v. Checkrite Cal., Inc., 912 F.Supp. 1354, 1372 (E.D.Cal.1995) (referring to 15 U.S.C. § 1692a(6)). In another case, the Eastern District of New York found personal liability in part because “each employee is himself a ‘debt collector’ within the statutory definition, namely each is a ‘person’ in a business, ‘the principal purpose of which is the collection of any debts or who regularly collects or attempts to collect ... debts owed or due ... another.’" }, { "docid": "6017277", "title": "", "text": "which would allow her to pierce CRA’s corporate veil. In making this argument, the defendant relies upon well-settled principles of corporate law which dictate that one cannot be held liable for the actions of the corporation simply by virtue of his status as an officer, director or shareholder. See Defendant’s Memorandum in Support of Motion to Dismiss, doc. # 62,11112-10. Although this may be a correct statement of law, the defendant’s reliance upon it is misplaced' — the plaintiff does not dispute that Hap Seiders cannot be held vicariously liable simply by virtue of his status in the corporation, nor does she seek to pierce CRA’s corporate veil. Rather, she argues that the defendant is liable because he is a debt collector and because he was personally involved with the collection of the debt at issue here. Individual defendants, such as directors or officers of a collection agency, may be held personally liable under the FDCPA. To establish an individual defendant’s personal liability, a plaintiff must first establish that the individual is a “debt collector.” See West v. Costen, 558 F.Supp. 564 (W.D.Va. 1983). The FDCPA defines a debt collector as any person who uses ,any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. 15 U.S.C. § 1692a(6). A high ranking employee, executive or director of a collection agency may fit within the statutory definition of a debt collector. See Teng v. Metropolitan Retail Recovery, Inc., 851 F.Supp. 61, 67 (E.D.N.Y.1994)(manager and president of collection agency are debt collectors); see also Ditty v. CheckRite, Ltd., Inc., 973 F.Supp. 1320, 1336-37 (D.Utah 1997)(super-visor of firm’s collection activities is a debt collector). It is not enough, however, to merely allege that Hap Seiders is a debt collector; the plaintiff must also allege that the defendant was personally involved in the collection of the debt at issue. See West v. Costen, 558 F.Supp. at 584-85. In West," }, { "docid": "10035458", "title": "", "text": "actions of his law firm, which is established as a limited liability company (LLC). Margelefsky argues that, notwithstanding any liability that his debt-collection business might face, he is entitled to be dismissed from the case as an individually named defendant. The question of whether an individual member of an LLC that is engaged in debt collection may be held liable under the FDCPA without piercing the corporate veil is an issue of first impression in this circuit. Liability under the FDCPA at taches only to a “debt collector,” a term defined by the Act as any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. 15 U.S.C. § 1692a(6). Ohio law precludes personal liability for members of an LLC on the basis of the LLC’s liability. Ohio Rev.Code Ann. § 1705.48. Margelefsky cites only one case in support of his argument that his lack of involvement with the specific notice at issue precludes his individual liability under the FDCPA. In that case, United States v. ACB Sales & Service, Inc., 590 F.Supp. 561 (D.Ariz.1984), the district court concluded that the director of a corporate entity “may be held liable only for [FDCPA] violations in which he materially participates.” Id. at 575. In more recent years, however, the. law surrounding this issue has been developed more fully and a split of authority has emerged. On one side of the split, the Seventh Circuit and a few district courts have ruled that a shareholder, officer, or employee of a corporate debt collector may not be held personally liable without meeting the requirements necessary to pierce the corporate veil. The leading case for this proposition is White v. Goodman, 200 F.3d 1016 (7th Cir.2000), where the Seventh Circuit concluded that “[t]he Fair Debt Collection Practices Act is not aimed at the shareholders of debt collectors operating in the corporate form unless some basis is" }, { "docid": "7328326", "title": "", "text": "1692a(5) (defining \"debt” for purposes of the FDCPA to include only an \"obligation[s that] ... are primarily for personal, family, or household purposes”); (Schwarm Decl. ¶ 3; Foronda Decl. ¶ 1; Ancelet Decl. ¶ 1). . A court \" ‘must give substantial deference to an agency's interpretation of its own regulations.’ ” Brannan v. United Student Aid Funds, Inc., 94 F.3d 1260, 1263 (9th Cir.1996) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994)). The court’s “ 'task is not to decide which among several competing interpretations best serves the regulatory purpose. Rather, the agency’s interpretation must be given “controlling weight unless it is plainly erroneous or inconsistent with the regulation.” ’ \" Id. .Craighead does not dispute that DATS constitutes a \"debt collection business.” Craig-head does argue that DATS is not subject to the FDCPA because it allegedly operated pursuant to criminal, not civil, state law. (Craig-head's Mem. in Opp'n to Pis.' Mot. for Summ. J. 2:21-27, 7:4-7.) Besides the exception in § 1692p, however, the FDCPA does not distinguish whether a debt collection business operated pursuant to criminal or civil law. Therefore, DATS was a “business the principal purpose of which is the collection of ... debts” as the FDCPA requires. 15 U.S.C. 1692a(6); del Campo v. Kennedy, 491 F.Supp.2d 891, 903 (N.D.Cal.2006) (holding that a private entity operating a bad check diversion program pursuant to a contract with the county district attorney is subject to the FDCPA). . Craighead attempts to distinguish the cases that found a shareholder or officer of a debt collecting corporation personally liable because, in most of the cases, the defendant debt collectors were attorneys. Craighead correctly notes that courts have emphasized that a defendant was an attorney when determining whether the defendant violated the FDCPA because \"[a]buses by attorney debt collectors are more egregious than those of lay collectors.” Irwin v. Mascott, 112 F.Supp.2d 937, 948 (N.D.Cal.2000); see also Guerrero v. RJM Acquisitions L.L.C., 499 F.3d 926, 935 (9th Cir.2007) (\"The statute as a whole thus suggests a congressional understanding that, when it comes" } ]

[ { "docid": "2571133", "title": "", "text": "(2d Cir.1942). Unfortunately, there are few “clean lines between maritime and non-maritime contracts.” Norfolk S. Ry. Co. v. James N. Kirby, Pty Ltd., 543 U.S. —, 125 S.Ct. 385, 393, 160 L.Ed.2d 283 (2004). The boundaries of admiralty jurisdiction over contracts are conceptual rathep than spatial, id. (quoting Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961)), and defined by the purpose of the jurisdictional grant — to protect maritime commerce, see Exxon Corp. v. Cent. Gulf Lines, Inc., 500 U.S. 603, 608, 111 S.Ct. 2071, 114 L.Ed.2d 649 (1991) (citing Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 24, 20 L.Ed. 90 (1870), and Sisson v. Ruby, 497 U.S. 358, 367, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990)). The Supreme Court has adopted a case-by-case approach in defining these boundaries, see Sisson, 497 U.S. at 372, 110 S.Ct. 2892 (Scalia, J., concurring), and has instructed that “[precedent and usage are helpful insofar as they exclude or include certain common types of contract,” Kossick, 365 U.S. at 735, 81 S.Ct. 886. While “ ‘[t]he precise categorization of the contracts that warrant invocation of the federal courts’ admiralty jurisdiction has proven particularly elusive,’ ” Ingersoll Milling Mach. Co. v. M/V Bodena, 829 F.2d 293, 301 (2d Cir.1987) (quoting CTI-Container Leasing Corp. v. Oceanic Operations Corp., 682 F.2d 377, 379 (2d Cir.1982)), the abiding instruction of the Supreme Court is that we should look to the contract’s “ ‘nature and character’ ” to see “whether it has ‘reference to maritime service or maritime transactions,’ ” Norfolk S. Ry. Co., 125 S.Ct. at 393 (quoting N. Pac. S.S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U.S. 119, 125, 39 S.Ct. 221, 63 L.Ed. 510 (1919)); see Dunham, 78 U.S. (11 Wall.) at 26. Therefore, the contract’s subject matter must be our focal point. See, e.g., Exxon Corp., 500 U.S. at 611, 111 S.Ct. 2071; Dunham, 78 U.S. (11 Wall.) at 29. A. A Threshold Inquiry Several of our cases, however, require that, prior to inquiring into the subject matter of the contract," } ]

[ { "docid": "8410427", "title": "", "text": "928 F.2d 164, 165 (5th Cir.1991) (“The waters become murky when we seek the precise parameters of a maritime contract.”); Domingue v. Ocean Drilling & Exploration Co., 923 F.2d 393, 393-94 (5th Cir.1991) (“Once more we embark on a voyage through the familiar marshland area of the law set aside for classifying the oil and gas exploration services contract as wet or dry.”). Because the general contract does not provide for specific work to be done, it and the letter agreement are considered as a single contract. See Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313, 315 (5th Cir.1990). In ascertaining whether that contract is a maritime contract, we look to the “nature and subject-matter” of the contract and ask whether it has “reference to maritime service or maritime transactions.” New England Mut. Marine Ins. Co. v. Dunham, 11 Wall. 1, 78 U.S. 1, 26-27, 20 L.Ed. 90 (1870); see Exxon Corp. v. Cent. Gulf Lines, Inc., 500 U.S. 603, 611, 111 S.Ct. 2071, 114 L.Ed.2d 649 (1991) (“[T]he nature and subject-matter of the contract at issue should be the crucial consideration in assessing admiralty jurisdiction.” (internal quotation omitted)). The contract need not, however, be purely one on the high seas. In a “maritime case about a train wreck,” the Supreme Court said that “[t]o ascertain whether a contract is a maritime one, we cannot look to whether a ship or other vessel was involved in the dispute, as we would in a putative maritime tort case.” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 18, 23, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004). “Instead, the answer depends upon the nature and character of the contract, and the true criterion is whether it has reference to maritime service or maritime transactions.” Id. at 24, 125 S.Ct. 385 (internal quotation and alteration omitted). In this circuit, we utilize the two-part inquiry laid out in Davis & Sons, 919 F.2d 313, to determine whether a contract is maritime. We look both to the “historical treatment in the jurisprudence” as well as to six fact-specific factors: 1) what does" }, { "docid": "16814726", "title": "", "text": "*8. It is hard to fathom the British High Court of Justice caring what jurisdictional subclause of Article III, Section 2 the federal court invokes to enforce the judgment. It should be enough that a plaintiff in possession of a favorable English judgment is given the maximum constitutionally permissible freedom to choose his preferred forum — here, a federal court sitting in admiralty. If anything, such a rule enhances, rather than diminishes, comity. It may also make it easier for U.S. parties to enforce contracts such as the one here in foreign maritime courts. To be sure, foreign law is not irrelevant to the determination of whether federal admiralty jurisdiction exists. The status of the contract or judgment under foreign law informs the inquiry in important ways. The question of whether a legal issue is maritime in nature is not an exercise in logic chopping wholly internal to the conceptual schemas of American jurisprudence; instead, it asks whether, as a practical matter, the “principal objective of [the] contract is maritime commerce.” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 25, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004). The reasoned judgments of experienced jurists, foreign or domestic, on this issue are due respectful consideration by federal courts. Additionally, whether other countries characterize a contract as maritime might have collateral consequences that may affect its real-world impact on maritime commerce — for example, in terms of how the contract is interpreted overseas or what procedures its interpretations are afforded. Nevertheless, the ultimate question of whether a contract or judgment is maritime for the purpose of supporting federal admiralty jurisdiction must, for the reasons explained above, be answered by reference to domestic rather than foreign law. While foreign law may or may not be instructive under the circumstances, it cannot determine the subject matter jurisdiction of an American court. And, as ably demonstrated in Judge Agee’s majority opinion, the contract here has a “genuinely salty flavor.” Kossick v. United Fruit Co., 365 U.S. 731, 742, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961). Thus, federal admiralty jurisdiction properly lies." }, { "docid": "16814708", "title": "", "text": "does not reserve a special jurisdic tion for maritime matters, or classify maritime matters as subject to a discrete body of laws, does not derogate from the policies of our law to provide for the adjudication of matters we regard as maritime in our federal courts. Id. at 160-61, 2014 WL 2609648 at *7. Based on the Supreme Court’s reasoning in Kirby and the on-point and persuasive opinion in D’Amico, we hold that federal law, rather than foreign law, controls the procedural inquiry into whether a foreign judgment is a maritime judgment. Thus, a claim to enforce a foreign maritime judgment is within the admiralty subject matter jurisdiction of United States courts when the claim underlying the judgment would be an admiralty or maritime claim under federal law. IV. A. Having determined that federal law controls our jurisdictional inquiry, we must now consider whether the FFAs at issue in this case are maritime contracts under federal law. If the FFAs are not maritime contracts, then the district court’s admiralty jurisdiction could not be invoked. “The boundaries of admiralty jurisdiction over contracts — as opposed to torts or crimes — being conceptual rather than spatial, have always been difficult to draw.” Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961). Whether a contract is maritime depends not upon “whether a ship or other vessel was involved in the dispute.” Kirby, 543 U.S. at 23, 125 S.Ct. 385. “Instead, the answer ‘depends upon ... the nature and character of the contract,’ and the true criterion is whether it has ‘reference to maritime service or maritime transactions.’ ” Id. at 24, 125 S.Ct. 385; see 1-XII Benedict on Admiralty § 182 (providing that “a contract relating to a ship in its use as such, or to commerce or navigation on navigable waters, or to transportation by sea or to maritime employment is subject to maritime law and the case is one of admiralty jurisdiction”). In consideration of this question, the district court stated, “Under federal law, it is clear that the question of whether the [FFAs]" }, { "docid": "14954547", "title": "", "text": "vacating a writ of maritime attachment for abuse of discretion. Equatorial Marine Fuel Mgmt. Servs. Pte Ltd. v. MISC Berhad, 591 F.3d 1208, 1210 (9th Cir.2010). We review the legal conclusions supporting such an order de novo. Id. We review de novo a district court’s decision that it lacked the legal capacity under the Admiralty Rules to order a party to post security in lieu of garnishment. See Husain v. Olympic Airways, 316 F.3d 829, 835 (9th Cir.2002) (noting that conclusions of law are re viewed de novo), aff'd, 540 U.S. 644, 124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004). Ill The district court vacated ProShipLine’s and EP-Team’s writ of maritime attachment because it concluded that there was no valid maritime claim giving rise to admiralty jurisdiction. The district court also held that it was bound by res judicata to vacate the writ. The district court further concluded that attachment was improper because all of the parties were present in the Southern District of Texas. On appeal to this court, Aspen offers a fourth reason that equitable vacatur was proper, arguing that ProShipLine and EP-Team violated 9 U.S.C. § 8 by seeking maritime attachment without diligently pursuing arbitration in Singapore. The district court properly vacated the writ as to ProShipLine. The district court, however, abused its discretion by vacating the writ as it pertains to EP-Team individually- A A party may only seek Rule B attachment if the underlying claim satisfies admiralty jurisdiction under 28 U.S.C. § 1333. The Supreme Court explains that a contractual claim gives rise to Section 1333 admiralty jurisdiction when the underlying contract is “maritime in nature.” Norfolk S. Ry. Co. v. James N. Kirby, 543 U.S. 14, 26, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004). To make this determination, we must examine a contract to determine “whether the principal objective of a contract is maritime commerce.” Id. at 25, 125 S.Ct. 385. In adopting this framework, the Supreme Court rejected the longstanding “spatial approach” to determining the maritime nature of contracts. Id. at 24-25, 125 S.Ct. 385. The Court instead held that a “conceptual approach” was" }, { "docid": "2155629", "title": "", "text": "defendant to contribute to plaintiff’s settlement of that claim sounded in contract, but not in admiralty.” Fednav filed a timely notice of appeal, and this Court stayed the district court’s vacatur of the writ of maritime attachment and garnishment to Marine Midland. DISCUSSION “The boundaries of admiralty jurisdiction over contracts — as opposed to torts or crimes — being conceptual rather than spatial, have always been difficult to draw.” Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 889-90, 6 L.Ed.2d 56 (1961). We have recognized that “[i]f the subject matter of the contract ‘ “relat[es] to a ship in its use as such, or to commerce or to navigation on navigable waters, or to transportation by sea or to maritime employment” ’ it is fairly said to constitute a maritime contract.” Ingersoll Milling Mach. Co. v. M/V Bodena, 829 F.2d 293, 302 (2d Cir.1987) (quoting CTI-Container Leasing Corp. v. Oceanic Operations Corp., 682 F.2d 377, 379 (2d Cir.1982) (quoting 1 Benedict on Admiralty § 183, at 11-6 (7th ed.1981))), cert. denied, 484 U.S. 1042, 108 S.Ct. 774, 98 L.Ed.2d 860 (1988); see North Pacific S.S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U.S. 119, 125, 39 S.Ct. 221, 222-23, 63 L.Ed. 510 (1919) (“[I]n matter[s] of contract it depends upon the subject-matter [of the contract], ... [;] the true criterion being the nature of the contract, as to whether it [has] reference to maritime service or maritime transactions.”). We also look to precedent to determine whether a particular agreement may be classified as a maritime contract. Kossick, 365 U.S. at 735, 81 S.Ct. at 889-90; CTI-Container Leasing Corp., 682 F.2d at 380. Comparing the contribution agreement with other maritime and nonmaritime contracts, we find that Isoramar’s agreement to contribute to the settlement of the charter claim is not a maritime contract. It is well-established that a charter party agreement is a maritime contract. Armour & Co. v. Fort Morgan S.S. Co., 270 U.S. 253, 259, 46 S.Ct. 212, 214, 70 L.Ed. 571 (1926); Morewood v. Enequist, 64 U.S. (23 How.) 491, 493-94, 16" }, { "docid": "14954548", "title": "", "text": "equitable vacatur was proper, arguing that ProShipLine and EP-Team violated 9 U.S.C. § 8 by seeking maritime attachment without diligently pursuing arbitration in Singapore. The district court properly vacated the writ as to ProShipLine. The district court, however, abused its discretion by vacating the writ as it pertains to EP-Team individually- A A party may only seek Rule B attachment if the underlying claim satisfies admiralty jurisdiction under 28 U.S.C. § 1333. The Supreme Court explains that a contractual claim gives rise to Section 1333 admiralty jurisdiction when the underlying contract is “maritime in nature.” Norfolk S. Ry. Co. v. James N. Kirby, 543 U.S. 14, 26, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004). To make this determination, we must examine a contract to determine “whether the principal objective of a contract is maritime commerce.” Id. at 25, 125 S.Ct. 385. In adopting this framework, the Supreme Court rejected the longstanding “spatial approach” to determining the maritime nature of contracts. Id. at 24-25, 125 S.Ct. 385. The Court instead held that a “conceptual approach” was needed because modern maritime commerce “is often inseparable from some land-based obligations.” Id. at 25, 125 S.Ct. 385. The conceptual approach acknowledges this modern reality by examining whether the contract references “maritime service or maritime transactions.” Id. at 24, 125 S.Ct. 385 (quoting N. Pac. S.S. Co. v. Hall Brothers Marine Ry. & Shipbuilding Co., 249 U.S. 119, 125, 39 S.Ct. 221, 63 L.Ed. 510 (1919)). The district court here did not examine the Agreement as required by Norfolk Southern Railway Co. The district court instead applied analysis employed by a few cases in the Southern District of New York. These cases suggest that whether a contract is maritime for the purpose of admiralty jurisdiction hinges upon whether the contract involves specific vessels and specific transactions. See, e.g., Dolco Invs. v. Moonriver Dev., 486 F.Supp.2d 261, 267-68 (S.D.N.Y.2007). The district court concluded that the Agreement was not a maritime contract because it did not make “reference to specific vessels or voyages.” In so deciding, the district court abused its discretion. Norfolk Southern Railway Co. controls" }, { "docid": "3548706", "title": "", "text": "S.Ct. 279, 116 L.Ed.2d 230 (1991); State Trading Corp. of India, Ltd. v. Assuranceforeningen Skuld, 921 F.2d 409, 414 (2d Cir.1990); Gonzalez v. Naviera Neptuno A.A., 832 F.2d 876, 880 n. 3 (5th Cir.1987); Illinois Constructors Corp. v. Morency & Assocs., Inc., 802 F.Supp. 185, 187-88 (N.D.Ill.1992). The admiralty jurisdiction of the federal courts extends to all maritime causes of action. 28 U.S.C. § 1333(1). But is AquaMarine’s cause of action on the performance bond a maritime claim? As a general rule, admiralty law applies to all maritime contracts. Insurance Co. v. Dunham, 78 U.S. (11 Wall.) 1, 29, 20 L.Ed. 90 (1870). Justice Story long ago announced the rule that a contract relating to the navigation, business or commerce of the sea is a maritime contract, an action on which may be brought in admiralty. De Lovio v. Boit, 7 F. Cas. 418, 444 (C.C.Mass.1815) (No. 3,776). More recently, it has been held that a contract is maritime if it relates to a ship in its use as such, or to commerce or to naviga tion on navigable waters, or to transportation by sea, or to maritime employment. J.A.R., Inc. v. M/V Lady Lucille, 963 F.2d 96, 98 (5th Cir.1992). It is, therefore, the subject matter (rather than the place of execution or place of performance) of a contract which determines the existence of federal maritime jurisdiction over a contractual claim. North Pac. S.S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U.S. 119, 39 S.Ct. 221, 63 L.Ed. 510 (1919); Rea v. The Eclipse, 135 U.S. 599, 608, 10 S.Ct. 873, 875-76, 34 L.Ed. 269 (1890); The Steamboat Orleans v. Phoebus, 36 U.S. (11 Pet.) 175, 183, 9 L.Ed. 677 (1837); Genetics Int’l v. Cormorant Bulk Carriers, Inc., 877 F.2d 806, 808 (9th Cir.1989). It is the character of the work to be performed under a contract which determines whether the contract is maritime. Hinkins S.S. Agency, Inc. v. Freighters, Inc., 498 F.2d 411, 412 (9th Cir.1974) (citing Hall Bros., 249 U.S. at 125, 39 S.Ct. at 222-23). If the subject of the contract relates to" }, { "docid": "13243981", "title": "", "text": "a contract bears some of the markings of both tort and contract claims. On its face, however, the claim fails the test for maritime torts because any tort arising from MTC’s refusal to consent to the settlement proposed by ICT occurred on land rather than over navigable water. We therefore turn to the test for contract claims. Admiralty jurisdiction extends to claims that arise from contract if the subject matter of the contract is maritime in nature. North Pac. S.S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U.S. 119, 125, 39 S.Ct. 221, 222, 63 L.Ed. 510 (1919); Hinkins S.S. Agency, Inc. v. Freighters, Inc., 498 F.2d 411, 412 (9th Cir.1974). An abstraction of the bound aries of this contract jurisdiction sufficient to offer concrete guidance in its application has failed to emerge. See Royal Ins. Co. of Am. v. Pier 39 Ltd. Partnership, 738 F.2d 1035, 1036 (9th Cir.1984). Instead, precedent has identified sets of commonly recurring contracts that are excluded or included in the jurisdiction. Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 890, 6 L.Ed.2d 56 (1961). The contracts forming the basis of Simon and Moss’ claim are the insurance policies by Mission and Majestic and the service agreements obligating MTC to adjust its own employees’ compensation claims. Our task is to compare these contracts with the established sets of maritime and nonmaritime contracts and to consider whether the interests underlying admiralty jurisdiction favor including the present action within the jurisdiction. See Royal Ins., 738 F.2d at 1036, 1038; Kennedy v. H & M Landing, Inc., 529 F.2d 987, 988-89 (9th Cir.1976) (per curiam). Marine insurance policies covering vessels engaged in maritime commerce and navigation have long been established as maritime contracts. The New England Marine Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 20 L.Ed. 90 (1870). Whether policies insuring other activities or property with a maritime flavor qualify as maritime contracts depends upon the maritime nature of the interests that are insured as opposed to the nature of the covered risks. Royal Ins., 738 F.2d at 1036-37" }, { "docid": "8410428", "title": "", "text": "of the contract at issue should be the crucial consideration in assessing admiralty jurisdiction.” (internal quotation omitted)). The contract need not, however, be purely one on the high seas. In a “maritime case about a train wreck,” the Supreme Court said that “[t]o ascertain whether a contract is a maritime one, we cannot look to whether a ship or other vessel was involved in the dispute, as we would in a putative maritime tort case.” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 18, 23, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004). “Instead, the answer depends upon the nature and character of the contract, and the true criterion is whether it has reference to maritime service or maritime transactions.” Id. at 24, 125 S.Ct. 385 (internal quotation and alteration omitted). In this circuit, we utilize the two-part inquiry laid out in Davis & Sons, 919 F.2d 313, to determine whether a contract is maritime. We look both to the “historical treatment in the jurisprudence” as well as to six fact-specific factors: 1) what does the specific work order in effect at the time of injury provide? 2) what work did the crew assigned under the work order actually do? 3) was the crew assigned to work aboard a vessel in navigable waters; 4) to what extent did the work being done relate to the mission of that vessel? 5) what was the principal work of the injured worker? and 6) what work was the injured worker actually doing at the time of injury? Id. at 316. Analyzing these factors, it is clear that Omni was instructed to fly workers to an oil platform, and that the workers were simple passengers on their way to the platform. We are left, however, with the central question of whether a contract to transport workers to an oil platform by helicopter is a maritime contract. Is the “nature and subject-matter” of transportation by helicopter a “maritime service”? Omni points us to tort cases where admiralty jurisdiction applies to helicopter accidents that occur over water. See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207," }, { "docid": "2571132", "title": "", "text": "cover a variety of losses which may arise in .day-to-day general operations.” Id. at 533. Contrasting CGL insurance with “the three traditional forms of marine insurance — hull insurance, cargo insurance, and protection and indemnity insurance,” the court concluded that the CGL section “simply lacks the genuinely salty flavor necessary to constitute a maritime contract.” Id. (internal quotation marks omitted). The court declined to consider the SLL section. Id. at 533-34. It reasoned that, while admiralty jurisdiction exists “where the non-maritime elements are merely incidental in an otherwise maritime contract,” id. at 533 (citing Atl. Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968 F.2d 196, 199 (2d Cir.1992) (hereinafter Atlantic Mutual) (internal quotation marks omitted)), “coverage under Section I can hardly be considered incidental to the \"Policy as a whole,” id. at 534. The court dismissed the compláint, and Folksamerica timely appealed. Discussion This appeal turns on what would seem a simple inquiry: Is the Policy a maritime contract giving rise to admiralty jurisdiction? See Jeffcott v. Aetna Ins. Co., 129 F.2d 582, 584 (2d Cir.1942). Unfortunately, there are few “clean lines between maritime and non-maritime contracts.” Norfolk S. Ry. Co. v. James N. Kirby, Pty Ltd., 543 U.S. —, 125 S.Ct. 385, 393, 160 L.Ed.2d 283 (2004). The boundaries of admiralty jurisdiction over contracts are conceptual rathep than spatial, id. (quoting Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961)), and defined by the purpose of the jurisdictional grant — to protect maritime commerce, see Exxon Corp. v. Cent. Gulf Lines, Inc., 500 U.S. 603, 608, 111 S.Ct. 2071, 114 L.Ed.2d 649 (1991) (citing Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 24, 20 L.Ed. 90 (1870), and Sisson v. Ruby, 497 U.S. 358, 367, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990)). The Supreme Court has adopted a case-by-case approach in defining these boundaries, see Sisson, 497 U.S. at 372, 110 S.Ct. 2892 (Scalia, J., concurring), and has instructed that “[precedent and usage are helpful insofar as they exclude or include certain common types of contract,” Kossick, 365 U.S. at" }, { "docid": "11822042", "title": "", "text": "insurances other than ocean marine ... insurances.... ”). The court reasoned it should turn by default to the Puerto Rico Civil Code. In the absence of any statute or' case law on point, the court predicted that under the Puerto Rico Civil Code the breach of a warranty clause in a contract of maritime insurance would not excuse payment by an insurer unless the breach was related to the cause of the loss. The insurers agree with the district court that “Puerto Rico law is silent on the issue” and that “the majority rule with respect to warranty breaches is similar to the federal admiralty rule inasmuch as[] both treat any breach as having the effect of voiding coverage in its entirety.” Op. and Order Den. Mot. for Recons., at 6. That being so, the insurers argue, even if Puerto Rico law would apply, it would apply as substantive law the majority rule that a breach of a promissory warranty excuses the insurer from coverage. We turn to the relevant principles of choice of law analysis as most recently set forth by the Supreme Court in Norfolk Southern Railway Co. v. Kirby, 543 U.S. 14, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004). Norfolk Southern clarified the Supreme Court’s earlier choice of law analysis for maritime insurance contracts set forth in Wilburn Boat Co. v. Fireman’s Fund Insurance Co., 348 U.S. 310, 314, 75 S.Ct. 368, 99 L.Ed. 337 (1955). Norfolk Southern stated the general rule that “[w]hen a contract is a maritime one, and the dispute is not inherently local, federal law controls the contract interpretation.” Id. at 22-23, 125 S.Ct. 385. This lawmaking power in the federal courts stems from the Constitution’s grant of admiralty jurisdiction to federal courts. See id. at 23, 125 S.Ct. 385; Wilburn Boat, 348 U.S. at 314, 75 S.Ct. 368; see also U.S. Const, art. III, § 2, cl. 1. This choice of law principle applies regardless of whether the basis for federal jurisdiction is admiralty jurisdiction, under 28 U.S.C. § 1333(1), or diversity, under id. § 1332. See Norfolk S. Ry., 543 U.S." }, { "docid": "20729976", "title": "", "text": "the letters were not maritime contracts and that the court therefore lacked admiralty jurisdiction over them. Village of Bald Head Island, 833 F.Supp.2d at 534-35. We agree with the district court. In Count VII, the Village alleged that the DeLony letter of June 9, 2000, “eonsti-tute[d] a valid and enforceable express or implied contract between the Village and the Corps” to deposit the spoils of maintenance dredging on adjacent beaches every two years and to take other steps, as necessary, to prevent the project from causing the beaches harm. And in Count VIII, the Village similarly alleged that the Moffitt letter of June 15, 2000, constituted a valid and enforceable contract between the North Carolina Division of Coastal Management and the Corps for the same purposes. We conclude that such contracts— to nourish area beaches with dredged sand and to protect them from further erosion—are not maritime contracts. The Supreme Court has recognized that the “boundaries of admiralty jurisdiction over contracts” are “conceptual rather than spatial,” so that whether a contract qualifies as maritime “depends upon [its] nature and character”—namely, “whether it has reference to maritime service or maritime transactions.” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 23-24, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004) (internal quotation marks omitted). In this respect, the Court has explained that the “fundamental interest giving rise to maritime jurisdiction is the protection of maritime commerce” and that “[t]he conceptual approach vindicates that interest by focusing [the] inquiry on whether the principal objective of a contract is maritime commerce.” Id. at 25, 125 S.Ct. 385 (second emphasis added) (internal, quotation marks omitted). It is clear that the “principal objective” of the contracts claimed by the Village was not “maritime commerce,” but the preservation of area beaches. Indeed, the Village expressly alleged that it “entered into negotiations with the Corps and [the North Carolina Department of Environment and Natural Resources] in an effort to reach agreement on project conditions or measures that would protect Bald Head Island or address project impacts.” (Emphasis added). To be sure, the principal purpose of the Wilmington Harbor Project" }, { "docid": "14954549", "title": "", "text": "needed because modern maritime commerce “is often inseparable from some land-based obligations.” Id. at 25, 125 S.Ct. 385. The conceptual approach acknowledges this modern reality by examining whether the contract references “maritime service or maritime transactions.” Id. at 24, 125 S.Ct. 385 (quoting N. Pac. S.S. Co. v. Hall Brothers Marine Ry. & Shipbuilding Co., 249 U.S. 119, 125, 39 S.Ct. 221, 63 L.Ed. 510 (1919)). The district court here did not examine the Agreement as required by Norfolk Southern Railway Co. The district court instead applied analysis employed by a few cases in the Southern District of New York. These cases suggest that whether a contract is maritime for the purpose of admiralty jurisdiction hinges upon whether the contract involves specific vessels and specific transactions. See, e.g., Dolco Invs. v. Moonriver Dev., 486 F.Supp.2d 261, 267-68 (S.D.N.Y.2007). The district court concluded that the Agreement was not a maritime contract because it did not make “reference to specific vessels or voyages.” In so deciding, the district court abused its discretion. Norfolk Southern Railway Co. controls and should have been applied by the district court. Under the conceptual test adopted by the Supreme Court, the Agreement manifestly has maritime commerce as its “principal objective.” The Agreement begins by stating that Aspen “seeks to utilize the services of [ProShipLine and EP-Team] in support of its efforts to book space on its vessels.” ProShipLine’s and EP-Team’s primary obligations under the Agreement are to “secure freight and associated revenue,” obtain “opportunities to add cargo to specific outbound voyages” and handle all “port and terminal handling operations” including “terminal facilitation, stevedoring, and heavy lift operations.” Although many of these obligations are performed on land, there is no question that their sole purpose is to facilitate and make pos sible Aspen’s international maritime operations. Contrary to the district court’s conclusion, the Agreement gives rise to federal maritime jurisdiction under 28 U.S.C. § 1333. Our interpretation of the Agreement is in accord with the Second Circuit, which concluded that the Agreement has an “undeniably maritime flavor” under the Norfolk Southern Railway Co. conceptual test. ProShipLine, Inc. v." }, { "docid": "22845662", "title": "", "text": "of a variety of services preliminary to maritime contracts, such as soliciting cargo or passengers, and procuring supplies, crews, stevedores, and tugboats. Thus, in Peralta Shipping, this Court held that a contract which included a duty to supervise the performance of maritime contracts did not warrant admiralty jurisdiction. Id. at 803. Bernard argues that freight forwarding contracts fall within the ambit of general agency contracts and are therefore excluded from admiralty consideration. Courts that have specifically dealt with admiralty jurisdiction over freight forwarders appear to have arrived at different conclusions. Compare Outbound Maritime Corp. v. P.T. Indonesian Consortium of Constr. Indus., 575 F.Supp. 1222, 1223-24 (S.D.N.Y.1983) (freight forwarder subject to admiralty jurisdiction) with Johnson Products Co. v. M/V La Molinera, 619 F.Supp. 764, 767 (S.D.N.Y.1985) (freight forwarder not subject to admiralty jurisdiction). However, the focus of our inquiry must be not on the name assigned to the contract, but rather on the nature of the services to be performed. It is the character of the work to be performed under the contract that is determinative of whether the agreement was maritime. Hinkins S.S. Agency, Inc. v. Freighters, Inc., 498 F.2d 411, 412 (9th Cir.1974); see also North Pac. S.S. Co. v. Hill Bros. Marine Ry. & Shipbld. Co., 249 U.S. 119, 125, 39 S.Ct. 221, 222, 63 L.Ed. 510 (1919); James Richardson & Sons v. Conners Marine Co., 141 F.2d 226, 228 (2d Cir.1944). If the subject matter of the contract “ ‘relat[es] to a ship in its use as such, or to commerce or to navigation on navigable waters, or to transportation by sea or to maritime employment’ ” it is fairly said to constitute a maritime contract. CTI-Container Leasing Corp., 682 F.2d at 379 (quoting 1 Benedict on Admiralty § 183, at 11-6 (7th ed. 1981)). Accordingly, we turn to an examination of the services to be performed by Bernard under its contract with Ingersoll. Of the thirteen services listed by the Federal Maritime Commission which a freight forwarder may perform at the request of a shipper, 46 C.F.R. § 510.2(h), Ingersoll asked Bernard to undertake six. Bernard" }, { "docid": "22818169", "title": "", "text": "is “the protection of maritime commerce.” Exxon, 500 U.S. at 608, 111 S.Ct. at 2074-75. It then analyzed the underlying rationales of Mintum to determine their validity in light of this fundamental interest. Two explanations were identified: (1) a demand for payment of monies owed could be heard readily at common law but not under admiralty jurisdiction; and (2) the vessel owners in Min-tum had not pledged the vessel as security for the balance of accounts between the agent and principal and therefore the contract could not be deemed maritime in nature. See Exxon, 500 U.S. at 609, 111 S.Ct. at 2075. The Court then turned to subsequent case law and found that each of these rationales had since been discredited. See id. at 610, 111 S.Ct. at 2075-76. Concluding that Min-tum was no longer good law, the Court stated that “the trend in modern admiralty case law ... is to focus the jurisdictional inquiry upon whether the nature of the transaction was maritime.” Id. at 611, 111 S.Ct. at 2076. It expressed a preference for a “nature and subject-matter” approach as being the “crucial consideration” in determining whether admiralty jurisdiction exists, and warned that “[i]t is inappropriate, therefore, to focus on the status of a claimant....” Id. at 611-12, 111 S.Ct. at 2076. This directive to examine each agency contract, for purposes of characterizing the nature of the services involved, eliminated a per se exclusionary rule. Decisions within this Circuit foreshadowed the holding in Exxon. In one case, we cited earlier Supreme Court precedent that described the jurisdictional inquiry as looking to “the subject-matter, the nature and character of the contract ... the true criterion being the nature of the contract, as to whether it have reference to maritime service or maritime transactions.” Peralta, 739 F.2d at 801 (quoting North Pacific S.S. Co. v. Hall Bros. Marine Ry. & S. Co., 249 U.S. 119, 125, 39 S.Ct. 221, 222-23, 63 L.Ed. 510 (1919)). We reiterated this approach in Ingersoll Milling Mach. Co. v. M/V Bodena, 829 F.2d 293, 302 (2d Cir.1987) (“[T]he focus of our inquiry must be not" }, { "docid": "3548707", "title": "", "text": "naviga tion on navigable waters, or to transportation by sea, or to maritime employment. J.A.R., Inc. v. M/V Lady Lucille, 963 F.2d 96, 98 (5th Cir.1992). It is, therefore, the subject matter (rather than the place of execution or place of performance) of a contract which determines the existence of federal maritime jurisdiction over a contractual claim. North Pac. S.S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U.S. 119, 39 S.Ct. 221, 63 L.Ed. 510 (1919); Rea v. The Eclipse, 135 U.S. 599, 608, 10 S.Ct. 873, 875-76, 34 L.Ed. 269 (1890); The Steamboat Orleans v. Phoebus, 36 U.S. (11 Pet.) 175, 183, 9 L.Ed. 677 (1837); Genetics Int’l v. Cormorant Bulk Carriers, Inc., 877 F.2d 806, 808 (9th Cir.1989). It is the character of the work to be performed under a contract which determines whether the contract is maritime. Hinkins S.S. Agency, Inc. v. Freighters, Inc., 498 F.2d 411, 412 (9th Cir.1974) (citing Hall Bros., 249 U.S. at 125, 39 S.Ct. at 222-23). If the subject of the contract relates to the ship and its uses as such, or to commerce or navigation on navigable waters, or to transportation by sea, the contract is maritime. Ingersoll Milling Mach. Co. v. M/V Bodena, 829 F.2d 293, 302 (2d Cir.1987), cert. denied, 484 U.S. 1042, 108 S.Ct. 774, 98 L.Ed.2d 860 (1988). If the obligation sued on is “directly and in essence” a maritime obligation, for the performance of maritime service or transactions, a suit on the obligation is cognizable in admiralty. Weinstein v. Eastern Airlines, Inc., 316 F.2d 758, 766 (3d Cir.) (quoting Pacific Sur. Co. v. Leatham & Smith Towing & Wrecking Co., 151 F. 440, 443-44 (7th Cir.1907)), cert. denied, 375 U.S. 940, 84 S.Ct. 343, 11 L.Ed.2d 271 (1963). The bareboat charter executed by Plaintiff-Appellee Aqua-Marine, the owner of the boat, and Michael Banks, the charterer, required Banks to obtain a bond securing payment of the charter hire and redelivery of the boat at the termination of the charter. Defendant-Appellant Polaris was not a party to the bareboat charter, and the charter party itself" }, { "docid": "11822043", "title": "", "text": "analysis as most recently set forth by the Supreme Court in Norfolk Southern Railway Co. v. Kirby, 543 U.S. 14, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004). Norfolk Southern clarified the Supreme Court’s earlier choice of law analysis for maritime insurance contracts set forth in Wilburn Boat Co. v. Fireman’s Fund Insurance Co., 348 U.S. 310, 314, 75 S.Ct. 368, 99 L.Ed. 337 (1955). Norfolk Southern stated the general rule that “[w]hen a contract is a maritime one, and the dispute is not inherently local, federal law controls the contract interpretation.” Id. at 22-23, 125 S.Ct. 385. This lawmaking power in the federal courts stems from the Constitution’s grant of admiralty jurisdiction to federal courts. See id. at 23, 125 S.Ct. 385; Wilburn Boat, 348 U.S. at 314, 75 S.Ct. 368; see also U.S. Const, art. III, § 2, cl. 1. This choice of law principle applies regardless of whether the basis for federal jurisdiction is admiralty jurisdiction, under 28 U.S.C. § 1333(1), or diversity, under id. § 1332. See Norfolk S. Ry., 543 U.S. at 23, 125 S.Ct. 385; Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 411, 74 S.Ct. 202, 98 L.Ed. 143 (1953) (“[Substantial rights ... are not to be determined differently whether [a] case is labelled ‘law side’ or ‘admiralty side’ on a district court’s docket.”). There is no dispute this is a maritime insurance contract. We also agree that the prevailing view, under federal law and the law of most states, is that a breach of a promissory warranty in a maritime insurance contract excuses the insurer from coverage. See Commercial Union, 190 F.3d at 31 (“Under the federal rule and the law of most states, warranties in maritime insurance contracts must be strictly complied with, even if they are collateral to the primary risk that is the subject of the contract, if the insured is to recover.”); see also Yu v. Albany Ins. Co., 281 F.3d 803, 809 (9th Cir.2002) (noting that “rule that a marine insurer can avoid liability for breach of a ... warranty, regardless of whether that breach caused the" }, { "docid": "20729977", "title": "", "text": "upon [its] nature and character”—namely, “whether it has reference to maritime service or maritime transactions.” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 23-24, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004) (internal quotation marks omitted). In this respect, the Court has explained that the “fundamental interest giving rise to maritime jurisdiction is the protection of maritime commerce” and that “[t]he conceptual approach vindicates that interest by focusing [the] inquiry on whether the principal objective of a contract is maritime commerce.” Id. at 25, 125 S.Ct. 385 (second emphasis added) (internal, quotation marks omitted). It is clear that the “principal objective” of the contracts claimed by the Village was not “maritime commerce,” but the preservation of area beaches. Indeed, the Village expressly alleged that it “entered into negotiations with the Corps and [the North Carolina Department of Environment and Natural Resources] in an effort to reach agreement on project conditions or measures that would protect Bald Head Island or address project impacts.” (Emphasis added). To be sure, the principal purpose of the Wilmington Harbor Project was to protect maritime commerce by ensuring that vessels could continue to access the port in Wilmington, North Carolina. But the alleged contracts—which were negotiated in response to the project in order to limit its impact on area beaches—were not designed to protect or engage in maritime commerce. Rather, they were sought to serve the recreational and aesthetic interests of the Village, as well as the property interests of property owners in the Village. Because the alleged contracts were not maritime contracts, the Village could not invoke the district court’s admiralty jurisdiction. Moreover, while we conclude that the contracts alleged in Counts VII and VIII were not maritime contracts, we have also concluded, as discussed above in connection with the Village’s APA claims, that the negotiations between the Village and thé Corps did not result in “binding commitments” that could be contractually enforced. See ante at 195-96. We therefore affirm the district court’s judgment dismissing the Village’s breach of maritime contract claims for lack of jurisdiction. AFFIRMED . It is also far from clear that" }, { "docid": "22818170", "title": "", "text": "for a “nature and subject-matter” approach as being the “crucial consideration” in determining whether admiralty jurisdiction exists, and warned that “[i]t is inappropriate, therefore, to focus on the status of a claimant....” Id. at 611-12, 111 S.Ct. at 2076. This directive to examine each agency contract, for purposes of characterizing the nature of the services involved, eliminated a per se exclusionary rule. Decisions within this Circuit foreshadowed the holding in Exxon. In one case, we cited earlier Supreme Court precedent that described the jurisdictional inquiry as looking to “the subject-matter, the nature and character of the contract ... the true criterion being the nature of the contract, as to whether it have reference to maritime service or maritime transactions.” Peralta, 739 F.2d at 801 (quoting North Pacific S.S. Co. v. Hall Bros. Marine Ry. & S. Co., 249 U.S. 119, 125, 39 S.Ct. 221, 222-23, 63 L.Ed. 510 (1919)). We reiterated this approach in Ingersoll Milling Mach. Co. v. M/V Bodena, 829 F.2d 293, 302 (2d Cir.1987) (“[T]he focus of our inquiry must be not on the name assigned to the contract, but rather on the nature of the services to be performed. It is the character of the work to be performed under the contract that is determinative of whether the agreement was maritime.”). In light of this precedent, it is clear that agency contracts can be a basis for admiralty jurisdiction if the “nature and subject matter” of the contract is maritime. Ill Preliminary Contract Doctrine With the Supreme Court having disposed of the agency contract exception, we turn our attention to the longstanding preliminary contract doctrine, another per se exception. The doctrine in this Circuit—set forth more than a century ago and upheld since—provides in pertinent part that disputes arising out of preliminary services contracts do not invoke maritime jurisdiction. See, e.g., The Thames, 10 F. 848 (S.D.N.Y.1881) (“The distinction between preliminary services leading to a maritime contract and such contracts themselves ha[s] been affirmed in this country from the first----”); The Harvey and Henry, 86 F. 656, 657 (2d Cir.1898); Christman v. Maristella Compania Naviera, 293" }, { "docid": "16814709", "title": "", "text": "boundaries of admiralty jurisdiction over contracts — as opposed to torts or crimes — being conceptual rather than spatial, have always been difficult to draw.” Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961). Whether a contract is maritime depends not upon “whether a ship or other vessel was involved in the dispute.” Kirby, 543 U.S. at 23, 125 S.Ct. 385. “Instead, the answer ‘depends upon ... the nature and character of the contract,’ and the true criterion is whether it has ‘reference to maritime service or maritime transactions.’ ” Id. at 24, 125 S.Ct. 385; see 1-XII Benedict on Admiralty § 182 (providing that “a contract relating to a ship in its use as such, or to commerce or navigation on navigable waters, or to transportation by sea or to maritime employment is subject to maritime law and the case is one of admiralty jurisdiction”). In consideration of this question, the district court stated, “Under federal law, it is clear that the question of whether the [FFAs] are maritime contracts is answered in the affirmative,” citing a number of decisions holding that certain FFAs are maritime contracts. Flame, 2014 WL 108897, at *3. Thus, the district court seemingly made a broad holding that all FFAs are maritime contracts under federal law. However, other language in the district court’s opinion indicates that its holding is more nuanced and specific to the FFAs in this case. For example, the district court observed that “Flame’s use of [FFAs] appears to have been primarily for hedging the risks inherent in their shipping business” and that “the [FFAs] in question would certainly be maritime contracts,” which Freight Bulk also challenges. Id. (emphasis added). The district court then seemed to express a case-specific holding that “the FFAs in question (and Flame’s underlying, claim) are maritime contracts.” Id. Ultimately, we need not resolve whether all FFAs are maritime contracts as a matter of law or remand the case for further consideration. Instead, because the district court made factual findings limited to the FFAs involved here, we affirm the district" } ]

[ { "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": "5391392", "title": "", "text": "established federal law if a state court “identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of [a] prisoner’s case.” Id. AEDPA establishes a deferential standard of review: “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Gilchrist v. O’Keefe, 260 F.3d 87, 93 (2d Cir.2001) (quoting Williams, 529 U.S. at 411, 120 S.Ct. 1495). The Second Circuit added that, while “[s]ome increment of incorrectness beyond error is required ... the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.” Gilchrist, 260 F.3d at 93 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000)). B. “In Custody” Requirement The respondent contends that the instant petition should be dismissed because petitioner was not “in custody” pursuant to the 1998 New York judgment of conviction for Sexual Abuse in the First Degree when he filed his 2006 petition because he was discharged from parole on that conviction in 2000. As set forth below, this Court agrees and finds that this Court has no jurisdiction to entertain petitioner’s claims on the 1998 conviction. A federal court has jurisdiction to consider a petition for a writ of habeas corpus on “behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254 (emphases added). The question presented by this case is whether petitioner’s habeas corpus petition asserts claims for which he is “in custody” within the meaning of 28 U.S.C. § 2254. See Scanio v. United States, 37 F.3d 858, 860 (2d Cir.1994) (denying a petition for writ of habeas corpus because the petitioner failed to satisfy “in custody” requirement); see also 28 U.S.C. §§ 2241, 2254(a); Lackawanna Cty." }, { "docid": "18854494", "title": "", "text": "relief be a “person in custody.” See, e. g., 28 U.S.C. § 2241(c)(3) (general applicability of writ); 28 U.S.C. § 2254(a)-(b), (d) (applicability to state custody); Section 2254, Rule l(a)(l)-(2) (scope of rules); Section 2254, Rule 2(a)-(b) (petitions concerning present or future custody). Although the “custody” requirement for habeas corpus was originally construed to mean “actual confinement or the present means of enforcing it,” Wales v. Whitney, 114 U.S. 564, 572, 5 S.Ct. 1050, 1053, 29 L.Ed. 277 (1885), modern eases have taken a more liberal approach to the degree of restraint on personal liberty that is necessary. Thus, in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), a state prisoner placed on “conditional” parole (requiring, inter alia, monthly report to parole officer, permission to leave community, permission to own or operate motor vehicle, and specified residence with relatives) was held to be in “custody” within the meaning of 28 U.S.C. § 2241(c). In acknowledging that “English courts have long recognized the writ as a proper remedy even though the 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" }, { "docid": "7706483", "title": "", "text": "the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.”). In Jones, for example, the Supreme Court held that a parolee continues to be in custody for habeas purposes because parole “imposes conditions which significantly confine and restrain [a person’s] freedom.” Id. at 243, 83 S.Ct. 373. In subsequent cases, the Supreme Court extended this holding to petitioners released after conviction on their own recognizance, Hensley, 411 U.S. at 351-52, 93 S.Ct. 1571, as well as on bail, Lefkowitz v. Newsome, 420 U.S. 283, 291 n. 8, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975). The Supreme Court explained that the writ of habeas corpus “is not now and never has been a static, narrow, formalistic remedy; [but that] 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.” Jones, 371 U.S. at 243, 83 S.Ct. 373. Our sister circuits apply Jones and analyze the satisfaction of the custody requirement by looking to the severity of restraints upon personal liberty. Compare Lillios v. New Hampshire, 788 F.2d 60, 61 (1st Cir.1986) (per curiam) (“[F]ines and [driver’s license] suspensions ... are not the sort of severe restraint on individual liberty for which habeas corpus relief is reserved.” (quotation marks omitted)); with Dow v. Circuit Court of First Circuit, 995 F.2d 922, 923 (9th Cir.1993) (per curiam) (custody requirement satisfied when petitioner sentenced to 14 hours of attendance at alcohol rehabilitation program). In Dow, the Ninth Circuit held that a petitioner was in custody by virtue of a sentence requiring only “fourteen hours of attendance at an alcohol rehabilitation program ... [which] could be scheduled [anytime] over [ ] a three-day or five-day period.” Id. at 922-23. The court reasoned that: “[t]he sentence in this case, requiring [petitioner’s] physical presence at a particular place, significantly restrains [petitioner’s] liberty to do those things which free persons in the United States are entitled to do and therefore must be characterized, for jurisdictional purposes, as ‘custody.’ ” Id. at" }, { "docid": "12120124", "title": "", "text": "PER CURIAM: Dale E. Birdsell, a federal inmate presently incarcerated in Oklahoma on convictions of conspiracy and transporting fraudulent securities, filed petitions for habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Middle District of Alabama. His petitions challenged the legality of two 1960 Alabama convictions on the grounds that (1) they were obtained in violation of his right to counsel, and (2) he was not mentally competent to stand trial at the time. The district court dismissed Birdsell’s petitions for lack of jurisdiction. We affirm. Petitioner was convicted in the Circuit Court of Montgomery County, Alabama, in 1960, on two counts of felony false pretenses. He was sentenced to forty-four months of prison. After approximately two years, he was placed on probation for each offense for a period of two years. Birdsell contends that because the Probation Department of Montgomery County, Alabama has never issued a formal certificate of discharge to him, he is still effectively “in custody” under the 1960 Alabama convictions, as his probation could be revoked at any time and he could be compelled to serve the remainder of his Alabama sentences. Petitioner is correct that he must be “in custody” within the district of the federal court in which the 28 U.S.C. § 2254 habeas petition is brought in order to vest that court with jurisdiction over the petition. Title 28, section 2254(a) of the United States Code provides: The Supreme Court, a justice thereof, a circuit judge, or a district court shall entertain an application for writ of habe-as corpus in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the constitution or laws or treaties of the United States. In Carafas v. LaVallee, 391 U.S. 234, 239, 88 S.Ct. 1556, 1560, 20 L.Ed.2d 554 (1968), the Supreme Court held that the expiration of the petitioner’s sentence before his application for habeas relief was fully adjudicated and while it was awaiting appellate review did not terminate federal jurisdiction with respect" }, { "docid": "1019152", "title": "", "text": "‘custody’ of the members of the Virginia Parole Board within the meaning of the habeas corpus statute.” 371 U.S. at 243, 83 S.Ct. at 377. The petitioner was, therefore, in custody at the time the writ might actually issue as well as at the time of the filing of his petition. As lower court decisions have subsequently held, a party who is on parole or probation may commence a petition for a writ of habeas corpus when not in prison at the time of commencement. E. g., United States ex rel. B. v. Shelly, 430 F.2d 215 (2d Cir. 1970); United States ex rel. Rybarik v. Maroney, 406 F.2d 1055 (3d Cir. 1969). More recently, the concept of custody has been expanded even further. In Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973), the Supreme Court held that the restraints placed upon a criminal defendant when released upon his own recognizance following conviction • and sentencing are sufficient to constitute custody. While recognizing that a parolee is generally subject to greater restrictions on his liberty than is a person released on bail or upon his own recognizance, the Court nevertheless ruled that the petitioner suffered such restraints on his liberty as to constitute custody. The Court was influenced, however, by the fact that the petitioner remained at large only by the grace of the state court’s decision to stay execution of the sentence and that his actual incarceration was far from a speculative possibility. Finally, the Court takes note of the decision of Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). In that opinion the Supreme Court ruled that a petition, once properly filed, did not become moot upon the unconditional release of the petitioner. The Court’s reasoning, however, differed from that in Jones v. Cunningham. Although it recognized the civil disabilities to which a convicted felon is subject and concluded that the scope of the great writ is sufficient to provide relief from such disabilities, the Court did not hold that these disabilities impose such a restraint upon" }, { "docid": "5629058", "title": "", "text": "Baker v. Finkbeiner, 551 F.2d 180, 182 n. 3 (7th Cir.1977) (parole). See also Jones v. Cunningham, supra. In Jones v. Cunningham, Justice Black wrote that conditions which “significantly restrain petitioner’s liberty to do those things which in this country free men are entitled to do ... are enough to invoke [habeas corpus].” Id., 371 U.S. at 243, 83 S.Ct. at 377. Not every restraint on liberty, however, is significant enough to meet this test. We agree with the district court that the suspension of driving privileges in this case is not a severe enough restraint on liberty to be properly characterized as “custody.” See also Westberry v. Keith, 434 F.2d 623, 624-25 (5th Cir.1970) ($250 fine and one year driver’s license revocation not custody within 28 U.S.C. § 2254); Whorley v. Brilhart, 359 F.Supp. 539, 541-42 (E.D.Va.1973) (ten year license revocation not custody). We recognize that, in our society, loss of driving privileges may entail hardship. However, suspension of driving privileges is not the sort of “severe restrain^ ] on individual liberty” for which habeas corpus relief is reserved. Hensley, 411 U.S. at 353, 93 S.Ct. at 1575. Because Harts is not “in custody” within the meaning of 28 U.S.C. § 2254 he is not entitled to invoke the federal habeas corpus jurisdiction. Therefore, the decision of the district court is affirmed. . A rationale governing these decisions appears to be the conditional nature of release; a violation of the conditions of bail, parole or probation may send the petitioner back to prison. Another recognized situation in which habeas corpus may lie even though the petitioner is not imprisoned due to the challenged conviction is where the conviction has collateral consequences such as sentence enhancement or delay of ultimate release from consecutive sentences. See Harrison v. State, 597 F.2d 115 (7th Cir.1979). This case involves none of the above doctrines." }, { "docid": "17106168", "title": "", "text": "PER CURIAM: Appellant was convicted of “failure to yield the right away (sic)” in the Metropolitan Court for Dade County, Florida, and sentenced to a $250.00 fine and revocation of her Florida driver’s license for one year. After paying the fine and surrendering her driver’s license to the Clerk of Court, appellant sought relief by petition for a writ of habeas corpus in the United States District Court for the Southern District of Florida by claiming that she was not informed of her right to be represented by counsel. The petition was dismissed by the district court for want of jurisdiction on the ground that appellant was not in custody pursuant to a judgment of a state court as required by 28 U.S.C. § 2254. We agree with appellant’s contention that the phrase “in custody” as used in § 2254 has undergone a metamorphosis in recent years to the extent that it is no longer necessary for a person to be under actual physical restraint in order to obtain habeas relief. See Carafas v. LaVallee, 1968, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554. Jones v. Cunningham, 1963, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285. In Jones v. Cunningham, supra, the Supreme Court held that a former prisoner on parole was sufficiently confined to come within the meaning of the habeas corpus statute and in Carafas v. LaVallee, supra, the Court found habeas corpus was available even though the petitioner’s sentence had fully expired after the initial application for the writ but before appellate review. These cases, however, involved petitioners who applied for the writ while either incarcerated under or paroled from prison sentences. We can find no decision by the Supreme Court nor by this circuit which would allow federal courts to take habeas corpus jurisdiction under § 2254 when the petitioner has applied for the writ after suffering a fine and the revocation of the right to drive on the state’s highways. To allow such circumstances to form the basis of a claim that appellant was in custody would go far beyond that degree of" }, { "docid": "12088035", "title": "", "text": "to 28 U.S.C. § 2254. On April 20, 1988, the district court filed an opinion and order dismissing McVeigh’s habeas corpus petition. Final judgment accordingly was entered the next day. This timely appeal followed. We are asked to decide whether the district court erred in denying McVeigh’s habeas corpus petition. II. A. 28 U.S.C. § 2241(c)(3) authorizes granting the writ of habeas corpus to a prisoner in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a) provides as follows: “The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” In Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 1833, 36 L.Ed.2d 439 (1973), the Supreme Court stated that “[i]t is clear, not only from the language of §§ 2241(c)(3) and 2254(a), but also from the common-law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody.” The term “custody,” however, is not limited solely to physical confinement. For example, individuals on parole, probation, or bail may be in custody for purposes of sections 2241 and 2254. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (parole); Hensley v. Municipal Court, 411 U.S. 345, 349, 93 S.Ct. 1571, 1573, 36 L.Ed.2d 294 (1973) (bail); United States v. Hopkins, 517 F.2d 420, 423-24 (3d Cir.1975) (probation). See Sevier v. Turner, 742 F.2d 262, 269 (6th Cir.1984) (dicta). But see Westberry v. Keith, 434 F.2d 623, 624-25 (5th Cir.1970) (per curiam) (individual fined and subjected to driver’s license revocation not in custody). Courts determine whether a habeas corpus petitioner is in custody for purposes of sections 2241 and 2254" }, { "docid": "18074029", "title": "", "text": "the position that the offensive terms of probation do not define the perimeters of her confinement, and thereby their elimination would not set her free, the traditional remedy sought in a petition for habeas corpus, 28 U.S.C. §§ 2241, 2254. With regard to Rosanna’s claims, we are satisfied that they must properly be brought by means of a petition for habeas corpus. We are bolstered in this finding first by the fact that the “terms and conditions” of probation place Rosanna “in custody” within the meaning of the federal habeas corpus statute, 28 U.S.C. § 2241(c). See Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). In Jones, supra, the Supreme Court held that the petitioner-parolee was sufficiently in the custody of his parole board to permit him to proceed under the habeas corpus statute to challenge his conviction for larceny. 371 U.S. at 243, 83 S.Ct. at 377. The Court found that even though the “ . . . 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 . [p]arole [bjoard within the meaning of the habeas corpus statute.” The parole order required the petitioner, for example, to visit his parole officer, “keep good company,” work regularly and “live a clean, honest, and temperate life.” Failure to meet these conditions might well have resulted in the petitioner’s return to prison. Since we can discern no significant difference between the statutes of parole and probation with regard to the question of custody, we find that the appellant, Rosanna Drollinger, has satisfied the jurisdictional prerequisite for a habeas corpus action. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Having determined that Rosanna is “in custody,” we must further consider whether the conditions and terms of her probation are the proper subject of a civil rights suit or petition for habeas corpus." }, { "docid": "5629056", "title": "", "text": "PER CURIAM. Earl D. Harts appeals from the district court’s denial of a writ of habeas corpus. Harts was convicted by an Indiana state court of refusing to submit to a breathalyzer test in violation of Ind.Code § 9-4-4.5-3 (1980) (repealed). The sentence for this refusal was a one year suspension of his driving privileges. The conviction and sentence were affirmed in all respects by the Court of Appeals of Indiana. Harts v. State, 441 N.E.2d 714 (Ind.App.1982). The district court denied the petition for a writ of habeas corpus on the ground that Harts was not in custody within the meaning of 28 U.S.C. § 2254(a). Habeas corpus lies only if the petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” Id. See also United States ex rel. Grundset v. Franzen, 675 F.2d 870, 872 (7th Cir.1982). Harts raises ten issues for review by this court but we find it necessary to address only the issue of whether a one year suspension of driving privileges amounts to custody within 28 U.S.C. § 2254. It is well settled that the custody requirement may be met even if the petitioner is not actually imprisoned. See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Grundset, supra, 675 F.2d at 872; Arias v. Rogers, 676 F.2d 1139, 1142 (7th Cir.1982); Burris v. Ryan, 397 F.2d 553, 555 (7th Cir.1968). Whether someone who is not under physical constraint can be considered in custody depends on the amount of restriction placed on his or her individual liberty. See Hensley v. Municipal Court, 411 U.S. 345, 349, 93 S.Ct. 1571, 1573, 36 L.Ed.2d 294 (1973). Thus, we have held that a prisoner, free on bail pending final disposition of his case, satisfied the “in custody” requirement. Grundset, supra. See also Hensley v. Municipal Court, supra, 411 U.S. at 351, 93 S.Ct. at 1574. Similarly, we have held that probation and parole may be “custody” for habeas corpus purposes. See Drollinger v. Milligan, 552 F.2d 1220, 1224 (7th Cir.1977) (probation); United States ex rel." }, { "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": "18854493", "title": "", "text": "DECISION AND ENTRY OVERRULING AND DISMISSING PETITIONER’S PETITION FOR WRIT OF HABEAS CORPUS RICE, District Judge. Petitioner in the captioned cause has applied for habeas corpus relief pursuant to 28 U.S.C. § 2254. At the time of application, petitioner was not in physical custody (at least under sentence imposed pursuant to the judgment attacked), having been paroled in 1972 and released from parole in 1973. The question presented is whether a habeas corpus remedy is available to petitioner in the absence of actual physical confinement. Petitioner contends that he is “effectively confined” because his conviction renders him ineligible for record expungement. The nature of the habeas writ, from the time of its common law origin, was to provide a remedy for unlawful imprisonment. Fay v. Noia, 372 U.S. 391, 402, 83 S.Ct. 822, 829, 9 L.Ed.2d 837 (1963); Preiser v. Rodriquez, 411 U.S. 475, 484, 93 S.Ct. 1827, 1833, 36 L.Ed.2d 439 (1973). Thus, the statutes governing federal habeas corpus, and the rules enacted thereunder, are consistently drafted to require that the petitioner seeking habeas relief be a “person in custody.” See, e. g., 28 U.S.C. § 2241(c)(3) (general applicability of writ); 28 U.S.C. § 2254(a)-(b), (d) (applicability to state custody); Section 2254, Rule l(a)(l)-(2) (scope of rules); Section 2254, Rule 2(a)-(b) (petitions concerning present or future custody). Although the “custody” requirement for habeas corpus was originally construed to mean “actual confinement or the present means of enforcing it,” Wales v. Whitney, 114 U.S. 564, 572, 5 S.Ct. 1050, 1053, 29 L.Ed. 277 (1885), modern eases have taken a more liberal approach to the degree of restraint on personal liberty that is necessary. Thus, in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), a state prisoner placed on “conditional” parole (requiring, inter alia, monthly report to parole officer, permission to leave community, permission to own or operate motor vehicle, and specified residence with relatives) was held to be in “custody” within the meaning of 28 U.S.C. § 2241(c). In acknowledging that “English courts have long recognized the writ as a proper remedy even though the" }, { "docid": "13078354", "title": "", "text": "petitioner need not be under actual physical restraint in order to be “in custody” for purposes of the statute. Westberry v. Keith, 434 F.2d 623, 624 (5th Cir. 1970). In the context of habeas proceedings, the “in custody” requirement may also be met where a petitioner is on probation, parole or bail. Id.; Hensley v. Municipal Court, 411 U.S. 345, 349, 93 S.Ct. 1571, 1573, 36 L.Ed.2d 294 (1973); Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963). The Supreme Court, however, has found that the custody requirement must be interpreted so as to “preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty.” Hensley v. Municipal Court, 411 U.S. at 351, 93 S.Ct. at 1574. Where, as here, the judgment of the state court imposes only a fine with no provision for incarceration, appellant’s liberty is not restrained, she is not “in custody” and her bare assertion of constitutional deprivation will not support federal court jurisdiction for § 2254 relief. Westberry v. Keith, 434 F.2d at 624-25. See also Wright v. Bailey, 544 F.2d 737 (4th Cir. 1976) (petitioner not “in custody” where conviction for disorderly conduct resulted in a fine with no provision for incarceration), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 82 (1977); Pueschel v. Leuba, 383 F.Supp. 576 (D.Conn.1974) (imposition of $100 fine is not a sufficient restraint of liberty to satisfy the “in custody” requirement). Peeling away the confusion engendered by appellant’s assertion that her incarceration for contempt is a virtual certainty, the existence of the possibility that appellant will be found in contempt and incarcerated for willful failure to pay the fine does not change the result. In Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), the Supreme Court invalidated the imprisonment of an indigent incarcerated solely because of his actual inability to pay a fine. The defendant was convicted of a traffic offense for which the penalty was only a fine but was jailed, despite indigency, under a separate statute which authorized incarceration for" }, { "docid": "13078353", "title": "", "text": "county court stayed execution of the sentence for sixty days to afford appellant additional time in which to commence at least partial payment. The court indicated that a payment of even five or ten dollars might suffice to cover her exposure to a contempt citation; if no payment was made within sixty days, a hearing would be held to determine if appellant is willfully refusing to pay. If so, appellant may be jailed for contempt. Appellant filed a petition for federal habeas relief, 28 U.S.C. § 2254, alleging that her conviction was in violation of the First and Fourteenth amendments. Upon the recommendation of the U.S. Magistrate, the district court found petitioner was not “in custody” as required by § 2254 and dismissed the petition for lack of jurisdiction. We find appellant’s argument that she is now “in custody” as scanty as her attire at the time of her arrest. 28 U.S.C. § 2254 requires an applicant for habeas relief to be “in custody pursuant to the judgment of a State court .... ” A petitioner need not be under actual physical restraint in order to be “in custody” for purposes of the statute. Westberry v. Keith, 434 F.2d 623, 624 (5th Cir. 1970). In the context of habeas proceedings, the “in custody” requirement may also be met where a petitioner is on probation, parole or bail. Id.; Hensley v. Municipal Court, 411 U.S. 345, 349, 93 S.Ct. 1571, 1573, 36 L.Ed.2d 294 (1973); Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963). The Supreme Court, however, has found that the custody requirement must be interpreted so as to “preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty.” Hensley v. Municipal Court, 411 U.S. at 351, 93 S.Ct. at 1574. Where, as here, the judgment of the state court imposes only a fine with no provision for incarceration, appellant’s liberty is not restrained, she is not “in custody” and her bare assertion of constitutional deprivation will not support federal court jurisdiction for § 2254 relief. Westberry v. Keith," }, { "docid": "3860245", "title": "", "text": "places him on excess leave status, which the government is not willing to do. Petitioner contends, however, that he is “in custody” for the purpose of invoking the writ of habeas corpus. 28 U.S.C. § 2241(c) provides that “[t]he writ of habeas corpus shall not extend to a prisoner unless (3) [h]e is in custody in violation of the Constitution or laws or treaties of the United States.” Although “habeas corpus is an extraordinary remedy” whose “use has been limited to a special urgency”, and whose custody requirement “is designed to preserve the writ . . . as a remedy for severe restraints on individual liberty”, Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 1574, 36 L.Ed.2d 294 (1973), the Supreme Court has found “custody” sufficient to invoke the use of the writ when a petitioner’s freedom of movement lay within the discretion of the government, as when a petitioner is on parole, Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1962), awaiting trial on bail, Hensley, supra, or on military reserve status, Strait v. Laird, 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972). Moreover, jurisdiction will attach if the petitioner is “in custody” at the time of filing, Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), although subsequently released from confinement before trial. See Marchand v. Director, U. S. Probation Office, 421 F.2d 331 (1st Cir. 1970) . Since the petition in the present case was filed when petitioner was in military custody to the extent that — although escape proved rather easy — his freedom of movement lay within the discretion of the government, it seems clear that jurisdiction attached. Meck v. Commanding Officer, Valley Forge Gen. Hosp., 452 F.2d 758 (3d Cir. 1971). This does not exhaust the inquiry. It is possible that the case is moot. So held the court in Ragsdale v. Cameron, 117 U.S.App.D.C. 278, 329 F.2d 233 (1963), when a habeas petitioner seeking release from a mental hospital escaped. So speculated the court in United States ex rel." }, { "docid": "7706451", "title": "", "text": "school, he must submit to a humiliating background check; that, for an unexplained reason, he was not permitted to travel to Canada for his honeymoon; and that he must notify authorities if he is going to be away from home for more than 24 hours. Finally, Wilson points out that his failure to comply with the state registration requirements subjects him to criminal penalties, both under state and federal law. Based on these restraints on his liberty, Wilson contends that he remains “in custody,” thereby satisfying the “in custody” jurisdictional requirement of 28 U.S.C. § 2254 and enabling the federal habeas court to consider his challenges to his rape conviction. Section 2254 provides that a federal court or judge shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a) (emphasis added). The Supreme Court has construed this provision to be jurisdictional and to require 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). Moreover, the Court has held that “in custody” does not refer just to physical confinement but also to parole served as part of a sentence involving physical confinement. See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). In Jones, the Court held that a prisoner who had been released on parole remained “in custody” because “the custody and control of the Parole Board involve[d] significant restraints on petitioner’s liberty,” including confinement “to a particular community, house, and job, at the sufferance of his parole officer,” periodic reporting requirements, and restrictions on certain activities. 371 U.S. at 242, 83 S.Ct. 373. The Court observed that because of these restrictions, the parolee “must live in constant fear that a single deviation, however slight, might be" }, { "docid": "14096825", "title": "", "text": "MEMORANDUM AND ORDER GARAUFIS, District Judge. Pro se Petitioner Stuart Huber brings this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The underlying facts of the trial are set forth in great detail in Magistrate Judge William D. Wall’s Report and Recommendation (“R & R”) below and need not be repeated here. I repeat portions of the post-conviction procedural history for context only. On May 29, 1992, Petitioner was convicted after a jury trial of robbery in the first degree. He was sentenced to a term of incarceration of four to twelve years. On May 16, 1996, Petitioner moved pursuant to New York Criminal Procedure Law § 440.10 to vacate his conviction on the grounds of newly discovered exculpatory evidence and Brady violations. His motion was denied. On December 22, 1997, Petitioner timely filed the instant petition for a writ of habe-as corpus, asserting five grounds for relief: (1) Brady violations, (2) failure to establish guilt beyond a reasonable doubt, (3) erroneous evidentiary rulings, and (4) improper jury instructions. The matter was referred to Magistrate Judge Wall for a report and recommendation. Since then Petitioner has been released from prison on probation. Petitioner filed specific objections to the R & R on November 27 and December 8, 2000. I have reviewed de novo the objections, the record, and Magistrate Judge Wall’s R & R, see 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b), and find Petitioner’s arguments unconvincing. Magistrate Wall concluded that this court retains jurisdiction over Petitioner’s application for a writ of habeas corpus because he was “in custody” at the time he filed his petition. See infra at 4 (citing Spencer v. Kemna, 523 U.S. 1, 11, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)). I agree with that statement and add only that the controversy is not mooted by Petitioner’s release because being “on parole” satisfies the “in custody” requirement of 28 U.S.C. § 2254(a). See Jones v. Cunningham, 371 U.S. 236, 242-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). Regarding the substantive issues, I am in full agreement with and hereby" }, { "docid": "18059476", "title": "", "text": "26,1996. (See generally 9/26/96 Oral Arg. Tr.) ANALYSIS I. PRELIMINARY PROCEDURAL ISSUES A. A Writ of Habeas Corpus is the Proper Remedy for a Parolee The writ of habeas corpus is available to any individual “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(e)(3) (emphasis added); see also 28 U.S.C. §§ 2254(a), 2255. While a petition filed after the expiration of a sentence does not meet the “in custody” requirement, see Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989), actual physical imprisonment is not required, so long as a petitioner suffers from substantial restraints not shared by the general public. See, e.g., Maleng v. Cook, 490 U.S. at 491, 109 S.Ct. at 1925; Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 1574-75, 36 L.Ed.2d 294 (1973). Upon his release from prison in 1994, LoFranco was subject to a fourteen-year parole term. It is black letter law that a parolee is still “in custody” within the meaning of the habeas statute. E.g., Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963) (parole meets the “in custody” requirement); Maleng v. Cook, 490 U.S. at 491, 109 S.Ct. at 1925 (citing Jones for proposition that parolee is in custody); Scanio v. United States, 37 F.3d 858, 860 (2d Cir.1994) (supervised release meets “in custody” requirement); Billiteri v. United States Bd. of Parole, 541 F.2d 938, 947 (2d Cir.1976) (habeas corpus petition is the proper relief to be sought by a parolee); Schwartz v. United States, 888 F.Supp. 24, 26 (S.D.N.Y.1995) (Sprizzo, J.) (same). Therefore, a writ of habeas corpus is the appropriate remedy to be sought in this action. B. LoFranco’s Current Habeas Petition is Not Barred By His Previous Parole Petition The Government argues that the Court should exercise its discretion to not entertain the present habeas petition pursuant to 28 U.S.C. § 2244, which provides that: No circuit or district judge shall be required to entertain an application for a writ of habeas corpus ..." }, { "docid": "5391393", "title": "", "text": "New York judgment of conviction for Sexual Abuse in the First Degree when he filed his 2006 petition because he was discharged from parole on that conviction in 2000. As set forth below, this Court agrees and finds that this Court has no jurisdiction to entertain petitioner’s claims on the 1998 conviction. A federal court has jurisdiction to consider a petition for a writ of habeas corpus on “behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254 (emphases added). The question presented by this case is whether petitioner’s habeas corpus petition asserts claims for which he is “in custody” within the meaning of 28 U.S.C. § 2254. See Scanio v. United States, 37 F.3d 858, 860 (2d Cir.1994) (denying a petition for writ of habeas corpus because the petitioner failed to satisfy “in custody” requirement); see also 28 U.S.C. §§ 2241, 2254(a); Lackawanna Cty. 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" }, { "docid": "5629057", "title": "", "text": "to custody within 28 U.S.C. § 2254. It is well settled that the custody requirement may be met even if the petitioner is not actually imprisoned. See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Grundset, supra, 675 F.2d at 872; Arias v. Rogers, 676 F.2d 1139, 1142 (7th Cir.1982); Burris v. Ryan, 397 F.2d 553, 555 (7th Cir.1968). Whether someone who is not under physical constraint can be considered in custody depends on the amount of restriction placed on his or her individual liberty. See Hensley v. Municipal Court, 411 U.S. 345, 349, 93 S.Ct. 1571, 1573, 36 L.Ed.2d 294 (1973). Thus, we have held that a prisoner, free on bail pending final disposition of his case, satisfied the “in custody” requirement. Grundset, supra. See also Hensley v. Municipal Court, supra, 411 U.S. at 351, 93 S.Ct. at 1574. Similarly, we have held that probation and parole may be “custody” for habeas corpus purposes. See Drollinger v. Milligan, 552 F.2d 1220, 1224 (7th Cir.1977) (probation); United States ex rel. Baker v. Finkbeiner, 551 F.2d 180, 182 n. 3 (7th Cir.1977) (parole). See also Jones v. Cunningham, supra. In Jones v. Cunningham, Justice Black wrote that conditions which “significantly restrain petitioner’s liberty to do those things which in this country free men are entitled to do ... are enough to invoke [habeas corpus].” Id., 371 U.S. at 243, 83 S.Ct. at 377. Not every restraint on liberty, however, is significant enough to meet this test. We agree with the district court that the suspension of driving privileges in this case is not a severe enough restraint on liberty to be properly characterized as “custody.” See also Westberry v. Keith, 434 F.2d 623, 624-25 (5th Cir.1970) ($250 fine and one year driver’s license revocation not custody within 28 U.S.C. § 2254); Whorley v. Brilhart, 359 F.Supp. 539, 541-42 (E.D.Va.1973) (ten year license revocation not custody). We recognize that, in our society, loss of driving privileges may entail hardship. However, suspension of driving privileges is not the sort of “severe restrain^ ] on individual liberty” for which" } ]

[ { "docid": "17421609", "title": "", "text": "Feliciana, Plaquemines, and Ouachita. They contend that the principal operative provisions of the Voting Rights Act are unconstitutional, and in the alternative that the Director of the Bureau of Census, the Attorney General of the United States, and the Civil Service Commission have, in the event the Act is constitutional, misconstrued and misapplied its terms. The case was heard by this Court on December 21, 1965, and briefs were submitted by December 31, 1965. At the time, the constitutionality of the Voting Rights Act was at issue in State of South Carolina v. Katzenbach, 1966, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed. 2d 769, then pending before the Supreme Court. The State of Louisiana and several other states participated in the proceeding as friends of the court. March 7, 1966, the Supreme Court announced its decision, holding certain provisions of the Act to be appropriate, constitutional means under the Fifteenth Amendment for carrying out the purposes of that amendment. No facts peculiar to South Carolina or to Louisiana would alter the result reached as to the constitutionality of the particular sections of the Voting Rights Act the court considered. . This is clear from frequent references by the court to arguments proposed by States participating as amicus curiae, by absence of reference to unique factual considerations existing in South Carolina, and by the broad sweep of the language employed by the Court in discussing the issues (see particularly 383 U.S. at 327-337, 86 S.Ct. 803). As we read the State of South Carolina v. Katzenbaeh, the Supreme Court considered and rejected the States’ argument on the following issues the defendants raise in the instant case: (1) The Voting Rights Act of 1965 exceeds the power of Congress and encroaches on an area reserved to the States by the Constitution * * * (383 U.S. at 323-329, 86 S.Ct. 803) (2) Suspension of tests and devices for five years is inappropriate * * * (383 U.S. at 333-334, 86 S.Ct. 803) (3) The formula provision is inappropriate legislation * * * (383 U.S. at 329-333, 86 S.Ct. 803) (4) Appointment" } ]

[ { "docid": "749523", "title": "", "text": "former § 2 purported to track the Fifteenth Amendment, and thus mandated proof of invidious intent, Congress has since elected to broaden the statutory proscription to embrace conduct which is discriminatory in either purpose or effect. Assuming that amended § 2 constitutes a valid exercise of legislative power, therefore, the Bolden court’s interpretation of the original § 2 is no longer controlling. Accordingly, we turn for guidance to a long line of Supreme Court cases wherein other key provisions of the 1965 Voting Rights Act have passed constitutional muster, such provisions having been deemed to fall within the purview of Congress’ enforcement authority. Section 4(a) of Act, 42 U.S.C. § 1973b(a), abolishing literacy tests in any jurisdiction where less than 50% of the voting age residents had voted in prior elections, was considered a necessary and proper means of implementing the Fifteenth Amendment in South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). Addressing the state’s contention that Congress had exceeded its enforcement powers under § 2 of the Fifteenth Amendment, the Katzenbach court proclaimed that “Congress has full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting.” Id. at 326, 86 S.Ct. at 817. The Court has since cited Katzenbach for the proposition “that congressional authority [embodied in § 2 of the Fifteenth Amendment] extends beyond the prohibition of purposeful discrimination to encompass state action that has discriminatory impact perpetuating the effects of past discrimination.” Fullilove v. Klutz nick, 448 U.S. 448, 477, 100 S.Ct. 2758, 2774, 65 L.Ed.2d 902 (1980) (dicta). Later in the 1966 term, in Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), the Supreme Court sustained § 4(e) of the Voting Rights Act of 1965, 42 U.S.C. § 1973b(e), against an attack founded on § 5 of the Fourteenth Amendment. Section 4(e) forbade the use of English literacy tests to deny the right to vote to any person who had attained a sixth grade education in an “American Flag” school, in which the language of instruction was other than English. This provision" }, { "docid": "21085912", "title": "", "text": "12111 (10)(B). . This burden-shifting applies to claims of disparate treatment, and not to claims for failure to reasonably accommodate. See Stevens v. Illinois Dep’t of Transp., 210 F.3d 732, 738 (7th Cir.2000) (citing Pond v. Michelin N. Am. Inc., 183 F.3d 592, 597 n. 5 (7th Cir.1999)). . Although Cleburne addressed the mentally disabled, there is no reason to believe that a different standard should or would apply to the physically disabled. . In light of Cleburne, we give little weight to Congress' finding in 42 U.S.C. § 12101(a)(7) that the disabled are a \"discrete and insular minority”' — a finding that might lead some to infer erroneously that a heightened standard of scrutiny may be appropriate. . By contrast, earlier Supreme Court decisions with respect to the Voting Rights Act, for example, have been upheld. See e.g. South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) (upholding ban on literacy tests for voters, even though they were not, on their face, unconstitutional); Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966) (upholding ban on literacy tests); Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (upholding five-year ban on literacy and other similar voting requirements). The historical context of voting legislation, however, reveals that state and local governments were engaged in widespread discrimination against minorities and immigrants, using literacy tests to further their unconstitutional discrimination. Further, prior less drastic legislation aimed at curbing this unconstitutional discrimination had been unsuccessful. See City of Boerne, 521 U.S. at 525-26, 117 S.Ct. 2157. As such, the voting legislation was a congruent and proportionate response to the unconstitutional harm sought to be corrected, and did not serve to make . substantive changes to the governing law. . The Court noted that \"Congress made no such findings with respect to the States. Although we [the Supreme Court] also have doubts whether the findings Congress did make with respect to the private sector could be extrapolated to support a finding of unconstitutional age discrimination in the public sector, it is sufficient" }, { "docid": "6854384", "title": "", "text": "because they reasonably believed the exam to be discriminatory and unrelated to job performance. 534 F.2d at 1007. Like the Supreme Court in Franks, the appellate court did not discuss constitutional issues. Nevertheless, the original panel decision is important here because it presumed that affirmative action could not be instituted unless it was to counter the effects of past discrimination. “If a minority worker has been kept from his rightful place ... he may, in some instances, be entitled to preferential treatment — not because he is Black, but because, and only to the extent that, he has been discriminated against.” Id. at 999 (emphasis added). That presumption was not disturbed by the opinion on rehearing which modified only so much of the prior decree as related to one class of persons. Id. at 1007. . “To the extent ‘legislative facts’ are relevant to a judicial determination, Congress is well equipped to investigate them, and such determinations are of course entitled to due respect.” Katzenbach v. Morgan, 384 U.S. 641, 668, 86 S.Ct. 1717, 1731, 1736, 16 L.Ed.2d 828 (1966) (Harlan, J., dissenting) (footnote omitted). A declaration of congressional belief is “of course entitled to the most respectful consideration, coming as it does from a concurrent branch . . . Id. at 669-70, 86 S.Ct. at 1737. . Title II of the PWE Act does set out congressional findings and declarations, but none of them relate to the MBE provision. . See Application of the MBE Provision, infra. . See United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977) (right to vote as secured by fourteenth and fifteenth amendments); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) (right to be free from badge of slavery as provided by thirteenth amendment); Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966) (rights to vote and to share in governmental services as provided by fourteenth amendment); South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) (right to" }, { "docid": "19713652", "title": "", "text": "Voting Rights Act of 1965, the 1970 amendments, and the Constitution. Our holding that a right to vote includes a right to an effective vote had previously been shared by courts which had looked at voting rights in analogous contexts. See e. g., Puerto Rican Organization for Political Action v. Kusper, 350 F.Supp. 606 (N.D.Ind.1972), aff'd 490 F.2d 575 (7th Cir. 1973), United States v. Louisiana, 265 F.Supp. 703 (E.D.La.1966), aff'd without opinion, 386 U. S. 270, 87 S.Ct. 1023, 18 L.Ed.2d 39 (1967), and United States v. Post, 297 F.Supp. 46 (W.D.La.1969). Defendants’ position that our decisions created new substantive rights cannot be maintained. Finally, defendants suggest that their cooperation with plaintiffs in implementing the decisions of this court should persuade us to disallow attorneys’ fees for plaintiffs. Such argument has little merit; as Judge Frankel noted in Aspira v. Board of Education of the City of New York, 65 F.R.D. 541, 543 (S.D.N.Y.1975), [in which a consent decree preceded the request for attorneys’ fees], a case need not be fought to the “last ditch” to permit attorneys’ fees to be granted. Instead, while courts may look to the resistance by the defendants as one factor, attention should be focused upon the obstacles which plaintiffs encountered and the contribution plaintiffs made. Here, plaintiffs’ actions were necessary to bring about compliance with constitutional requirements. See, e. g., Armstead v. Starkville Municipal Separate School District, et al., 395 F.Supp. 304 (N.D.Miss.1975). Plaintiffs’ significant contribution in this area is demonstrated by the reliance placed upon the litigations by other courts and Congress. See, e. g., Arroyo v. Tucker, 372 F.Supp. 764 (E.D.Pa. 1974) and the Congress and Admin. News, (Aug. 25,1975). Plaintiffs’ motion for attorneys’ fees is granted. As the parties, by affidavit, have already indicated that there is a dispute as to the amount to be awarded, a hearing must be held. See City of Detroit v. Grinnell Corp., supra. So ordered. SUPPLEMENTAL MEMORANDUM This court granted attorneys’ fees to plaintiffs’ counsel for the litigation Lopez v. Dinkins [“Lopez”], 73 Civ. 2666 and of Torres v. Sachs [“Torres”], 73 Civ. 3921." }, { "docid": "8693180", "title": "", "text": "were available and were not to electioneer. . This appears to have been inconsistent with at least the spirit of the Lopee Order. (See n. 5 supra.) . The following new E.D.s were created: 50, 51, 52, 53b, 54, 55, 56, 57, 58, 59, 60. . 50, 51, 55, 56, 57, 58, 60. . The following E.D. lines were redrawn : 1) between 31 and 32; 2) between 18, 27 and 28 and 3) between 21, 23 and 24. . The 30th E.D. . It is perhaps ironic that the only piece of mail from the Board of Elections £ut into evidence and testified to as having been actually received by a District One resident was Plaintiffs’ Exhibit 9, which informed inspector Miriam Rios to report for duty at the 30th E.D. but failed to inform her that the polling site for the 30th E.D. had been moved from its accustomed place, P.S. 34, to a completely new polling site, Emmanuel Church. . 455 F.R.D. Drive (4th & 5th E.D.s) ; 475 F.R.D. Drive (6th & 7th E.D.s) ; 504 Grand St. (9th & 10th E.D.s) ; 383 Grand St. (11th E.D.) ; 77 Columbia St. (20th E.D.) ; 175 E. 4th St. (41st & 42nd E.D.s). . Although specific practices on May 1 can be considered violations of specific sections of the Voting Rights Acts and Amendments (e. g. the lack of effective bilingual assistance violated 42 U.S.C. § 1973b (e) and 42 U.S.C. § 1973aa. Puerto Rican Organization for Political Action v. Kusper, 490 F.2d 575 (7th Cir., 1973)), we view the policies and practices of the May 1 District One election in their totality, and find it unnecessary to evaluate them in any but general equal protection terms. Black, Puerto Rican, and Chinese voters and potential voters may each constitute an identifiable class for purposes of the Fourteenth Amendment. See e. g. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L. Ed.2d 314 (1973) ; Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966) ; Hernandez v. Texas, 347 U.S. 475," }, { "docid": "1297013", "title": "", "text": "of the Voting Rights Act of 1965 (42 U.S.C. § 1973b(e)), read with the Voting Rights Amendments of 1970 (42 U.S.C. § 1973aa), establishes and protects the voting rights of persons educated in Puerto Rican schools by prohibiting the states “from conditioning the right to vote of such persons on ability to read, write, understand, or interpret any matter in the English language” (42 U.S.C. § 1973b(e)(1)). Designed originally to aid the Puerto Rican population of New York (Katzenbach v. Morgan, 384 U.S. 641, 645, 86 S.Ct. 1717, 16 L.Ed.2d 828, n. 3 (1966)) without disturbing the minimum education requirements of that state’s election law, Section 4(e) specifically enfranchised those who had successfully completed the sixth grade in an Ameri can-flag school in which the predominant classroom language was other than English. (42 U.S.C. § 1973b(e) (2).) Congress’ intent to place the voting rights of Puerto Rican educated citizens on a parity with those of English speaking citizens was evidenced by an “except” clause which governed when the applicable state election law contained a lower education requirement than completion of the sixth grade. (Ibid.) When Congress abolished all state minimum education and literacy requirements for a period of five years in the Voting Rights Amendments of 1970 (42 U.S.C. § 1973aa(a) and (b)), what was left of Section 4(e) was its prohibition against denying any person educated in Puerto Rico, whatever the extent of his education, “the right to vote in any Federal, State, or local election because of . . . inability to read, write, understand, or interpret any matter in the English language.\" That prohibition protects the voting rights of the plaintiff class in this case. The right to vote means the right to effectively register the voter’s political choice, not merely the right to move levers on a voting machine or to mark a ballot. In deciding that a state could not, consistent with the Equal Protection Clause, provide for voting assistance to physically infirm voters while denying it to illiterate voters, the three-judge court in Garza v. Smith, 320 F.Supp. 131, 136 (W.D.Tex.1970), said: “If the" }, { "docid": "749524", "title": "", "text": "Amendment, the Katzenbach court proclaimed that “Congress has full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting.” Id. at 326, 86 S.Ct. at 817. The Court has since cited Katzenbach for the proposition “that congressional authority [embodied in § 2 of the Fifteenth Amendment] extends beyond the prohibition of purposeful discrimination to encompass state action that has discriminatory impact perpetuating the effects of past discrimination.” Fullilove v. Klutz nick, 448 U.S. 448, 477, 100 S.Ct. 2758, 2774, 65 L.Ed.2d 902 (1980) (dicta). Later in the 1966 term, in Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), the Supreme Court sustained § 4(e) of the Voting Rights Act of 1965, 42 U.S.C. § 1973b(e), against an attack founded on § 5 of the Fourteenth Amendment. Section 4(e) forbade the use of English literacy tests to deny the right to vote to any person who had attained a sixth grade education in an “American Flag” school, in which the language of instruction was other than English. This provision was aimed at New York’s disenfranchisement of Puerto Rican residents. Writing for the majority, Justice Brennan analogized Congress’ § 5 authority to, inter alia, the plenary grant of the necessary and proper clause, Article I, § 8, cl. 18. Thus, the critical question was “whether § 4(e) may be regarded as an enactment to enforce the Equal Protection Clause, ... whether it is ‘plainly adapted to that end,’ and whether it is not prohibited by but is consistent with ‘the letter and spirit of the constitution.’ ” Id. at 651, 86 S.Ct. at 1723 (quoting from McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421, 4 L.Ed. 579 (1819)). Notwithstanding the absence of a record of actual discrimination, the Court endorsed Congress’ passage of a measure which remedied historical discrimination, and enabled the Puerto Rican community to combat prospective state violations of the Fourteenth Amendment. As Chief Justice Burger subsequently observed, in discussing the import of Morgan: To uphold this exercise of congressional authority, the Court found no prerequisite that application of a literacy requirement" }, { "docid": "6291862", "title": "", "text": "unless they receive assistance in Spanish. Plaintiffs bring this action individually and in behalf of a class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. The parties do not dispute that there are a sufficient number of Puerto Rican persons residing in Philadelphia who speak, read, write and comprehend only Spanish, and who are eligible to vote, in order to constitute a class of plaintiffs. The individual plaintiffs raise claims which are identical to the claims of the class and which are based on identical issues of law and fact. The defendants have acted on grounds generally applicable to the class and plaintiffs appropriately seek declaratory and injunctive relief with respect to the class as a whole. There is no reason to doubt that plaintiffs and their counsel will fairly and adequately protect the interests of the class. The cause is therefore determined as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure. CONCLUSIONS OF LAW Section 4(e) of the Voting Rights Act of 1965 (42 U.S.C. § 1973b(e) forbids any State from “conditioning the right to vote” of a person educated for a period of six years in an American-flag school where English was not the language of instruction on his or her degree of fluency in the English language. The legislative purpose behind section 4(e) makes clear that the Puerto Rican community residing in the United States is the group sought to be protected by the terms of the Act. Katzenbach v. Morgan, 384 U.S. 641, 645 n. 3, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). Since 1917, residents of Puerto Rico were citizens of the United States ipso jure, 8 U.S.C. § 1402. Thus, unlike naturalized citizens, Puerto Ricans need not demonstrate a facility with English. Indeed since 1947, the United States has encouraged Puerto Rico to teach its school children in Spanish. See Puerto Rican Organization For Political Action (“PROPA”) v. Kusper, 490 F.2d 575 (C.A.7, 1973). As a result, many immigrants from Puerto Rico, all of whom are United States citizens, arrive here without speaking or reading English." }, { "docid": "23097520", "title": "", "text": "civil rights and the equal protection of the laws against state denial or invasion, if not prohibited, ____” Ex parte Virginia, 100 U.S. at 345-46. Congress may invalidate the perpetuation of earlier purposeful discrimination, and act to eradicate the continuing effects of that discrimination. City of Rome, 446 U.S. at 176-77, 100 S.Ct. at 1561-62. Congress has prohibited a variety of voting practices not necessarily prohibited directly by the Constitution, and the Supreme Court has upheld these exercises of the enforcement power. In South Carolina v. Katzenbach, 1966, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769, the Court upheld a suspension of literacy tests in specific jurisdictions. In Katzenbach v. Morgan, 1966, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828, the Court upheld a prohibition on the use of English literacy tests to disenfranchise citizens educated in Puerto Rico. In Oregon v. Mitchell, 1970, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272, the Court unanimously upheld a nationwide ban on literacy tests and by an 8-1 margin upheld limitations on residency requirements in presidential elections. In South Carolina v. Katzenbach and again in City of Rome the Court upheld the preclearance provisions of the Voting Rights Act, which require federal review of all changes in voting practices in certain jurisdictions and require the Attorney General to object to any change that is discriminatory either in purpose or effect. The 1982 amendment to section 2 of the Voting Rights Act is clearly within the enforcement power. Congress conducted extensive hearings and debate on all facets of the Voting Rights Act and concluded that the “results” test was necessary to secure the right to vote and to eliminate the effects of past purposeful discrimination. The Senate Report explains in detail why the results test was necessary and appropriate. In particular, Congress found “(1) that the difficulties faced by plaintiffs forced to prove discriminatory intent through case-by-case adjudication create a substantial risk that intentional discrimination barred by the Fourteenth and Fifteenth Amendments will go undetected, uncorrected and undeterred unless the results test proposed for section 2 is adopted; and (2)" }, { "docid": "19713650", "title": "", "text": "to these litigations. The appropriate test for the retroactive application of amendments which permit attorneys’ fees to be awarded when litigation of the merits has been terminated but the case is still pending was articulated by the Supreme Court in Bradley v. School Board of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). Once it is determined that the new statute has application to the case, as it does, Bradley directs that the court must “apply the law in effect at the time it renders its decision, unless doing so would result in manifest in justice or there is statutory direction or legislative history to the contrary.” 416 U.S. at 711, 94 S.Ct. at 2016. Looking to the respective abilities of the parties to protect their interests and to the importance of the rights enforced, we can perceive no “manifest injustice” to defendants in granting plaintiffs’ motion. Defendants attempt to impress upon us that the Torres and Lopez decisions created new substantive rights for plaintiffs and that defendants were burdened by new obligations. Defendants rely upon the 1975 amendments to the Voting Rights Act to illustrate that bilingual ballot assistance has not previously been required. Thus, defendants maintain that retroactive application of the amendments would be unjust Defendants misconceive the pertinence of the 1975 amendments to the motion before the court. At issue here is the applicability of § 14(e) to this litigation; the enactment of substantive provisions in the Act does not affect the present motion. Further, as the legislative history indicates, the substantive revisions were not viewed as a “radical step” [Cong, and Admin.News, Aug, 25, 1975, p. 1483] but were “merely an extension of the legislative and constitutional principles approved by the Supreme Court in South Carolina v. Katzenbach, [383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966)] and Katzenbach v. Morgan, [384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966)].” Cong.News at 1487. In the Congress’ view, no novel constitutional issues were presented. This interpretation accords with our earlier decisions in these cases, which were based upon Section 4(e) of the" }, { "docid": "13354545", "title": "", "text": "See Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901); Armstrong v. United Stales, 182 U.S. 243, 21 S.Ct. 827, 45 L.Ed. 1086 (1901); Dooley v. United Stales, 182 U.S. 222, 21 S.Ct. 762, 45 L.Ed. 1074 (1901); De Lima v. Bidwell, 182 U.S. 1, 21 S.Ct. 743, 45 L.Ed. 1041 (1901). . At the very least, it is clear that Congress has extended the Privileges and Immunities Clause to Puerto Rico by statute. See 48 U.S.C. § 737 (\"The rights, privileges, and immunities of citizens of the United States shall be respected in Puerto Rico to the same extent as though Puerto Rico were a State of the Union and subject to the provisions of paragraph 1 of section 2 of article IV of the Constitution of the United States.\"). . See South Carolina v. Katzenbach, 383 U.S. 301, 333-34, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) (upholding suspension of literacy tests in Voting Rights Act of 1965); Gaston County v. United States, 395 U.S. 285, 89 S.Ct. 1720, 23 L.Ed.2d 309 (1969) (same); Oregon v. Mitchell, 400 U.S. 112, 118, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (opinion of Justice Black announcing judgment of Court upholding expanded prohibition of literacy tests in 1970 amendments to the Voting Rights Act). . See Katzenbach v. Morgan, 384 U.S. 641, 658, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966) (upholding the “American-flag schools” provision of the Voting Rights Act). . Only Justice Harlan dissented from the Court's decision to uphold the durational residency provisions of the 1970 amendments to the Voting Rights Act. See Mitchell, 400 U.S. at 213-16, 91 S.Ct. 260 (Harlan, J., dissenting). Justice Black located Congress’s authority to bar durational residency requirements and to create uniform absentee ballot guarantees in Congress's inherent \"broad authority to create and maintain a national government.” See id. at 134, 91 S.Ct. 260 (opinion of Justice Black). Justice Douglas rooted the authority in Section Five of the Fourteenth Amendment and Congress’s power to enforce what Justice Douglas styled \"the right to vote for national officers.” See id. at 147-50, 91" }, { "docid": "6854385", "title": "", "text": "1736, 16 L.Ed.2d 828 (1966) (Harlan, J., dissenting) (footnote omitted). A declaration of congressional belief is “of course entitled to the most respectful consideration, coming as it does from a concurrent branch . . . Id. at 669-70, 86 S.Ct. at 1737. . Title II of the PWE Act does set out congressional findings and declarations, but none of them relate to the MBE provision. . See Application of the MBE Provision, infra. . See United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977) (right to vote as secured by fourteenth and fifteenth amendments); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) (right to be free from badge of slavery as provided by thirteenth amendment); Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966) (rights to vote and to share in governmental services as provided by fourteenth amendment); South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) (right to vote secured by fifteenth amendment). . See Jones v. Alfred H. Mayer Co., supra; Katzenbach v. Morgan, supra; South Carolina v. Katzenbach, supra. In United Jewish Organizations, supra, the Court upheld the challenged Voting Rights Act, the enactment of which was based on extensive findings of prior discrimination. See South Carolina v. Katzenbach, supra. We note also that though the Voting Rights Act does not require a positive finding of prior discrimination before racial criteria can be used to formulate redistricting plans, any state that becomes subject to the Voting Rights Act does have the opportunity to show that it has not determined the composition of the electorate using certain methods that in effect disfranchise racial minorities. New York State sought exemption from the application of the Voting Rights Act but was unable to make an adequate showing of nondiscrimination. See 430 U.S. at 148—49, 97 S.Ct. 996. . See Jones v. Alfred H. Mayer Co., supra; Katzenbach v. Morgan, supra; South Carolina v. Katzenbach, supra. In United Jewish Organization, supra, the petitioner claimed that" }, { "docid": "9940504", "title": "", "text": "Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 21, 27 L.Ed. 835 (1883) (stating that § 5 permits Congress only to “adopt appropriate legislation for correcting the effects of such prohibited State laws and State acts, and thus to render them effectively null, void, and innocuous”). The Court has stressed that, even in the face of conflicting Supreme Court decisions, lower courts are not to assume that Supreme Court precedent has been implicitly overruled, see Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1921-1922, 104 L.Ed.2d 526 (1989), and the Court has cited the Civil Rights Cases approvingly as recently as 1982. See Lugar, 457 U.S. at 936, 102 S.Ct. at 2753. 2. Morgan Even though state action was not at issue in Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), the plaintiff relies primarily on the sweeping language of Morgan in support of her position that the Fourteenth Amendment reaches private conduct. In Morgan, the Court considered whether § 4(e) of the Voting Rights Act of 1965 was constitutional under § 5 of the Fourteenth Amendment. Section 4(e) provided in relevant part that no person who successfully completed the sixth grade in public or private school in Puerto Rico in which the language of instruction was other than English shall be denied the right to vote because of an inability to read or write English. Id. at 643,86 S.Ct. at 1719. Appellees in the case challenged § 4(e) in that it pro hibited the enforcement of the election laws of New York, which required an ability to read and write English as a condition of voting. Id. at 643-644, 86 S.Ct. at 1719-1720. Appellees attacked § 4(e) because it enabled many New York residents to vote who could not previously vote under the New York law. Id. at 644-645, 86 S.Ct. at 1720. The Court held that § 4(e) was a proper exercise of the powers granted to Congress by § 5 of the Fourteenth Amendment, and, by force of the Supremacy Clause, the New York" }, { "docid": "6291864", "title": "", "text": "Section 4(e) was enacted to protect their right to vote without regard to the language they speak. In 1970, Congress amended the Voting Rights Act to prohibit all states from using any literacy tests for a period of five years. 42 U.S.C. § 1973a(a). The 1970 provision was upheld in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970). As a result of the 1970 amendment, the sixth grade education requirement in Section 4(e) was eliminated. Propa v. Kusper, supra. The controlling issue presented here is whether Philadelphia’s English-only election system constitutes a condition on the plaintiffs’ right to vote as prescribed in Section 4(e). Although the issue is novel for us, identical issues were presented to a district court in New York in Torres v. Sachs, supra, and to the Seventh Circuit Court of Appeals in Propa v. Kusper, supra. In Torres, Judge Stewart determined that “The conduct of an election in English only violates plaintiffs’ rights under the Voting Rights Amendments of 1970 which enforce the Fourteenth Amendment to the Constitution of the United States and the Civil Rights Act of 1871.” In Propa, supra, the court held that the Voting Rights Act mandated that “a Spanish-speaking Puerto Rican is entitled to assistance in the language he can read or understand.” The “right to vote” as contained in the Voting Rights Act has been interpreted broadly. It is not merely the right to gain physical access to a voting booth. In Garza v. Smith, 320 F.Supp. 131 (W.D.Tex.1970), vacated and remanded for appeal to the Fifth Circuit, 401 U.S. 1006, 91 S.Ct. 1257, 28 L.Ed.2d 542, appeal dismissed for lack of jurisdiction, 450 F.2d 790 (C.A.5, 1971) the court held that the right to vote included the “right to be informed” and found a Texas statute violated the equal protection clause by permitting assistance to blind voters but not to illiterate voters. A narrow construction of the “right to vote” was similarly rejected in United States v. Louisiana, 265 F.Supp. 703 (E.D.La.1966), aff’d without opinion, 386 U.S. 270, 87 S.Ct. 1023, 18 L.Ed.2d 39" }, { "docid": "15889044", "title": "", "text": "state discrimination therefore can come within Congress’ section 5 authority. South Carolina v. Katzenbach, 383 U.S. 301, 334, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) (“Congress knew that continuance of the tests and devices in use at the present time, no matter how fairly administered in the future, would freeze the effect of past discrimination in favor of unqualified white registrants.” (emphasis added)); see also Lopez v. Monterey County, 525 U.S. 266, 283, 119 S.Ct. 693, 142 L.Ed.2d 728 (1999) (Congress “may guard against both discriminatory animus and the potentially harmful effect of neutral laws.... ” (emphasis in original)); City of Rome v. United States, 446 U.S. 156, 176, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980) (Congress may, under the authority of section 2 of the Fifteenth Amendment, prohibit state action that ... perpetuates the effects of past discrimination.); id. (construing the various opinions in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), as similarly permitting legislation that “attack[s] the perpetuation of earlier, purposeful racial discrimination”); cf. City of Boerne, 521 U.S. at 528, 117 S.Ct. 2157 (noting that the voting rights provision requiring New York to permit most Puerto Ricans to vote despite inability to read English, upheld in Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828(1966), “could be justified as a remedial measure to deal with ‘discrimination in governmental services,’ ” because that rationale “rested on unconstitutional discrimination by New York and Congress’ reasonable attempt to combat it.”). As to the “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end,” Garrett, 121 S.Ct. at 963 (quoting City of Boerne, 521 U.S. at 520, 117 S.Ct. 2157), congruence and proportionality of remedial legislation “must be judged with reference to the historical experience it reflects.” City of Boerne, 521 U.S. at 525, 117 S.Ct. 2157 (alterations in original omitted). Thus, we must view the FMLA against the continuing impact of nearly two centuries of systemic state sex dis crimination in employment and related laws. In light of this “historical experience,” the FMLA" }, { "docid": "23221987", "title": "", "text": "the provisions of this article.” The Supreme Court has repeatedly recognized the central role of Congress in establishing appropriate mechanisms to enforce the fourteenth amendment. See, e. g., Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966); cf. South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) (§ 2 of the fifteenth amendment). “It is not said the judicial power of the general government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed.... It is the power of Congress which has been enlarged.” Ex parte Virginia, 100 U.S. 339, 345, 25 L.Ed. 676 (1879). Congress has exercised its power to “enforc[e] the prohibitions” on many occasions, but it has refused to grant the Executive and the Judiciary the authority that now is asserted. See part III B, supra. In our view, it would be entirely inappropriate for a federal court to overrule the explicit decisions of Congress not to increase federal executive and judicial authority over state and local governments in this manner. In addition, the Supreme Court in the last decade has repeatedly recognized the importance of a proper respect for the independent roles of state and local governments in our federal system. See, e. g., Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970). Judge Ditter wrote eloquently and persuasively for the court below that to permit this action to proceed “would be to vest an excessive and dangerous degree of power in the hands of the Attorney General”: The point is that the power which the Attorney" }, { "docid": "19713651", "title": "", "text": "obligations. Defendants rely upon the 1975 amendments to the Voting Rights Act to illustrate that bilingual ballot assistance has not previously been required. Thus, defendants maintain that retroactive application of the amendments would be unjust Defendants misconceive the pertinence of the 1975 amendments to the motion before the court. At issue here is the applicability of § 14(e) to this litigation; the enactment of substantive provisions in the Act does not affect the present motion. Further, as the legislative history indicates, the substantive revisions were not viewed as a “radical step” [Cong, and Admin.News, Aug, 25, 1975, p. 1483] but were “merely an extension of the legislative and constitutional principles approved by the Supreme Court in South Carolina v. Katzenbach, [383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966)] and Katzenbach v. Morgan, [384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966)].” Cong.News at 1487. In the Congress’ view, no novel constitutional issues were presented. This interpretation accords with our earlier decisions in these cases, which were based upon Section 4(e) of the Voting Rights Act of 1965, the 1970 amendments, and the Constitution. Our holding that a right to vote includes a right to an effective vote had previously been shared by courts which had looked at voting rights in analogous contexts. See e. g., Puerto Rican Organization for Political Action v. Kusper, 350 F.Supp. 606 (N.D.Ind.1972), aff'd 490 F.2d 575 (7th Cir. 1973), United States v. Louisiana, 265 F.Supp. 703 (E.D.La.1966), aff'd without opinion, 386 U. S. 270, 87 S.Ct. 1023, 18 L.Ed.2d 39 (1967), and United States v. Post, 297 F.Supp. 46 (W.D.La.1969). Defendants’ position that our decisions created new substantive rights cannot be maintained. Finally, defendants suggest that their cooperation with plaintiffs in implementing the decisions of this court should persuade us to disallow attorneys’ fees for plaintiffs. Such argument has little merit; as Judge Frankel noted in Aspira v. Board of Education of the City of New York, 65 F.R.D. 541, 543 (S.D.N.Y.1975), [in which a consent decree preceded the request for attorneys’ fees], a case need not be fought to the “last" }, { "docid": "6291863", "title": "", "text": "1973b(e) forbids any State from “conditioning the right to vote” of a person educated for a period of six years in an American-flag school where English was not the language of instruction on his or her degree of fluency in the English language. The legislative purpose behind section 4(e) makes clear that the Puerto Rican community residing in the United States is the group sought to be protected by the terms of the Act. Katzenbach v. Morgan, 384 U.S. 641, 645 n. 3, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). Since 1917, residents of Puerto Rico were citizens of the United States ipso jure, 8 U.S.C. § 1402. Thus, unlike naturalized citizens, Puerto Ricans need not demonstrate a facility with English. Indeed since 1947, the United States has encouraged Puerto Rico to teach its school children in Spanish. See Puerto Rican Organization For Political Action (“PROPA”) v. Kusper, 490 F.2d 575 (C.A.7, 1973). As a result, many immigrants from Puerto Rico, all of whom are United States citizens, arrive here without speaking or reading English. Section 4(e) was enacted to protect their right to vote without regard to the language they speak. In 1970, Congress amended the Voting Rights Act to prohibit all states from using any literacy tests for a period of five years. 42 U.S.C. § 1973a(a). The 1970 provision was upheld in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970). As a result of the 1970 amendment, the sixth grade education requirement in Section 4(e) was eliminated. Propa v. Kusper, supra. The controlling issue presented here is whether Philadelphia’s English-only election system constitutes a condition on the plaintiffs’ right to vote as prescribed in Section 4(e). Although the issue is novel for us, identical issues were presented to a district court in New York in Torres v. Sachs, supra, and to the Seventh Circuit Court of Appeals in Propa v. Kusper, supra. In Torres, Judge Stewart determined that “The conduct of an election in English only violates plaintiffs’ rights under the Voting Rights Amendments of 1970 which enforce the Fourteenth Amendment to" }, { "docid": "8693181", "title": "", "text": "& 7th E.D.s) ; 504 Grand St. (9th & 10th E.D.s) ; 383 Grand St. (11th E.D.) ; 77 Columbia St. (20th E.D.) ; 175 E. 4th St. (41st & 42nd E.D.s). . Although specific practices on May 1 can be considered violations of specific sections of the Voting Rights Acts and Amendments (e. g. the lack of effective bilingual assistance violated 42 U.S.C. § 1973b (e) and 42 U.S.C. § 1973aa. Puerto Rican Organization for Political Action v. Kusper, 490 F.2d 575 (7th Cir., 1973)), we view the policies and practices of the May 1 District One election in their totality, and find it unnecessary to evaluate them in any but general equal protection terms. Black, Puerto Rican, and Chinese voters and potential voters may each constitute an identifiable class for purposes of the Fourteenth Amendment. See e. g. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L. Ed.2d 314 (1973) ; Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966) ; Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954) ; Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Because of the similarities in the problems incurred' by these groups with respect to voting rights on May 1 in District One, we have considered them together as an identifiable class for purposes of the Fourteenth Amendment, Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973) White v. Regester, supra, despite the fact that, taken together, they constitute almost a majority of the resident population and over 90% of the school population in District One. . We find no basis in the record to disagree with this statement, but find it not conclusive on the issue of discrimination. . See p. 48 supra, where we find that the proportion of minority members among parent voters was significantly higher than the proportion of minority members among the regularly registered resident voters. Virtually all white housing area. While Census tract for whole area shows 40-50% Blacks" }, { "docid": "7564749", "title": "", "text": "Id. at -, 117 S.Ct. at 2169. Second, rather than simply remedying any constitutional violations, the RFRA created rights that far exceeded any the Supreme Court has read the First Amendment to provide. See id. at -, 117 S.Ct. at 2170. Under Smith, generally applicable statutes that incidentally burden religion are permissible, see 494 U.S. at 878-79, 110 S.Ct. at 1600; the RFRA could not be enforcing any First and Fourteenth Amendment right to be free from incidental burdens on religious practice. See Boerne, - U.S. at -, 117 S.Ct. at 2171. Therefore, Congress did not have power under the Fourteenth Amendment to enact the statute. Boerne thus sets the RFRA outside § 5’s boundary. Two earlier cases, both concerning the Voting Rights Act of 1965, exemplify proper exercise of Congress’s § 5 power. The first case is South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct 803, 15 L.Ed.2d 769 (1966), which rejected a broad attack on most of the geographically restricted provisions of the Voting Rights Act. The second is Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), which upheld a provision of the Act that invalidated New York’s English-literaey voter-qualification rule. Of the two cases, Morgan appears to attribute the broadest powers to Congress, arguably recognizing a congressional power not only to effectuate Supreme Court-identified rights but also to find Fourteenth Amendment rights not yet identified by the Supreme Court. See Morgan, 384 U.S. at 650-51, 86 S.Ct. at 1723-24. The Boerne Court dismissed the language in Morgan that suggests that Congress has broad powers both to interpret the Fourteenth Amendment and effectuate Fourteenth Amendment rights, Boerne, — U.S. at -, 117 S.Ct. at 2168, but the Court reaffirmed its holdings in these Voting Rights Act cases. Id. at ---, 117 S.Ct. at 2166-68. The differences between the circumstances underlying the Voting Rights Act and those leading to the RFRA are, after all, striking. Before passing the Voting Rights Act, Congress thoroughly documented a history of obvious Fifteenth Amendment violations, and the legislative history indicates that the Act’s primary purpose was to" } ]

[ { "docid": "13222161", "title": "", "text": "Voisine v. United States, - U.S. -, 136 S.Ct. 2272, 2278, 195 L.Ed.2d 736 (2016). Because we conclude that § 39-13-102(a) is divisible and Perez-Silvan was convicted under § 39-13-102(a)(l), we need not address this argument. .Johnson held this in the context of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), but the definition for a violent felony given there (a crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another’’) is identical to the definition of a crime of violence in U.S.S.G. § 2L1.2 cmt. n.l(B)(iii). . At the time of Perez-Silvan's conviction, Tennessee code defined a “serious bodily injury\" as a “bodily injury” involving: (A) A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; (E) Protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty; Tenn. Code Ann. § 39-ll-106(a)(34) (2006). . While the Nevada law at issue in Camacho-Cruz defined assault differently, as \"intentionally placing another person in reasonable apprehension of immediate bodily harm,” 621 F.3d at 943 (quoting Nev. Rev. Stat. § 200.471), Camacho-Cruz made plain that the \"threatened use of force is sufficient for a crime to constitute a crime of violence,” id.; see also Juvenile Female, 566 F.3d at 947-48. Holding a knife or gun while poking a person in the back is the quintessential example of a threat of violence. . Because we hold that Tennessee Code Annotated § 39-13-102(a)(1) is a crime of violence under the element prong, there is no need to address whether it is also a crime of violence under the enumerated offense prong. OWENS, Circuit Judge, concurring: I fully join . Judge O’Seannlain’s opinion, which faithfully applies controlling law to the question at hand. But what a bad hand it is — requiring more than 16 pages to resolve an advisory question. I applaud the United States Sentencing Commission for reworking U.S.S.G. § 2L1.2 to spare judges, lawyers, and defendants from the wasteland of Descamps. See U.S.S.G. supp. app. C, amend. 802" } ]

[ { "docid": "14725345", "title": "", "text": "New Mexico statute — aggravated assault statute on a family member using a deadly weapon § 30-3-13(A)(2) — constituted a violent felony under the element prong of the ACCA). Cf. United States v. Romo-Villalobos, 674 F.3d 1246, 1251 (11th Cir.2012) (holding that the defendant’s prior Florida conviction for resisting an officer with violence was a crime of violence under § 2L1.2(b)(l)(A)(ii) because the use of more than de minimis physical force or violence was a necessary element of the offense and “Florida’s general intent crimes plainly require something more than recklessness”); United States v. King, 673 F.3d 274, 279-80 (4th Cir.2012) (holding that the defendant’s South Carolina conviction for pointing and presenting a firearm required that the offender point, present, or show the firearm at another in a threatening manner and therefore qualifies as a crime of violence under U.S.S.G. § 4B1.2(a)(l)); United States v. Luna, 649 F.3d 91, 108-09 (1st Cir.2011) (holding that the version of a Massachusetts armed robbery statute involving threatening words or gestures has as an element the threat of violent physical force necessary to satisfy the definition of “vio lent felony” under the ACCA); United States v. Melchor-Meceno, 620 F.3d 1180, 1184 (9th Cir.2010) (holding that Colorado felony menacing statute “is categorically a crime of violence under the element prong of U.S.S.G. § 2L1.2. The nature of the force required ... is in the category of violent active crimes, because it penalizes imminent serious bodily injury, rather than minimal, non-violent touching, and necessarily involves a threat to physical safety, rather than general safety. Furthermore, the predicate offense of menacing, a general intent crime, includes the requisite mens rea of intent for a crime of violence. It requires the defendant to knowingly place another person in fear of an imminent serious bodily harm.”); United States v. Pulliam, 566 F.3d 784, 788 (8th Cir.2009) (“It goes without saying that displaying an operational weapon before another in an angry or threatening manner [in violation of Missouri’s crime of unlawful use of a weapon] qualifies as threatened use of physical force against another person.”). The Licon-Nunez and Silva decisions" }, { "docid": "22116069", "title": "", "text": "the “use of physical force.” As well, it should be uncontroversial that formulations of assault requiring an intent to injury of a victim should be considered to involve the attempted use of force. But batteries and assaults punishable under such statutes can involve uses or attempted uses of physical force that are subtle or indirect. For example, a person may be indicted and convicted for Texas assault if he “intentionally ... causes bodily injury to another, including the person’s spouse.” Tex. Penal Code ANN. § 22.01(a)(1) (Vernon 2003). The bodily injury need not result from a violent physical contact between the defendant and the victims; subtle or indirect means would do, whether by tricking a person into consuming poison, or luring him to walk off a cliff. Likewise, the crime of murder in many states may be satisfied by subtle and indirect uses of force. A person may be indicted and convicted for Texas murder, for example, if he “intentionally or knowingly causes the death of an individual.” Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003). Again, the defendant need never lay a finger on his victim. Though murder is, quite fortunately, enumerated as a crime of violence under the second prong of the relevant violence definition, it would be absurd to believe that murder would not involve the “use of physical force.” See U.S.S.G. § 2L1.2, application note l(B)(ii)(II). Additionally, although murder is enumerated as a “crime of violence,” attempted murder is not. Attempted murder may be undertaken by other than attempts to cause “bodily” or “physical” contact, yet no court reasonably would hold that attempted murder is a crime that does not involve the “attempted use of physical force against the person of another.” Accordingly, the majority’s insistence on “bodily contact” is serious error. Physical forces, whether subtle and indirect, are physical forces nonetheless. B. As for the majority’s holding that one can knowingly create an imminent danger of another’s physical injury without “trying to inflict bodily injury on the person,” I disagree. I also take issue with the majority’s related conclusion: “Creating a risk of injury, even" }, { "docid": "5242562", "title": "", "text": "to qualify as a crime of violence.” Dominguez, 479 F.3d at 348. Reading the relevant statutes together, the Louisiana offense of aggravated battery set forth in section 14:34 consists of the following elements: (1) “a battery,” La.Rev.Stat. § 14:34 — namely, (a) “the intentional use of force or violence upon the person of another” or (b) “the intentional administration of a poison or other noxious liquid or substance to another,” id. § 14:33 — (2) that is “committed with a dangerous weapon,” id. § 14:34, which is defined as (a) “any gas, liquid or other substance or instrumentality” (b) “which, in the manner used, is calculated or likely to produce death or great bodily harm,” id. § 14:2(3). We agree with Herrera-Alvarez that his prior Louisiana conviction for aggravated battery does not qualify as a “crime of violence” under the “force or violence” prong of § 2L1.2 because the Louisiana definition of battery includes the administration of poison, which does not necessarily entail the use of physical force. See United States v. Villegas-Hernandez, 468 F.3d 874, 879 (5th Cir.2006) (holding that the Texas crime of simple assault, Tex. Pen.Code § 22.01(a), is not a crime of violence that has as an element the use, attempted use, or threatened use of physical force because a conviction could be sustained under that section, inter alia, the defendant merely “ma[de] available to the victim a poisoned drink while reassuring him the drink is safe,” which would not entail “destructive or violent physical force”). Under the reasoning of Villegas-Hemandez, the harmful effect of the poison itself is not sufficient to furnish the destructive or violent physical force that the “use of force” prong of § 2L1.2 demands. See id. Likewise, Louisiana’s section 14:34 criminalizes conduct broader than that contemplated in § 2L1.2 because it covers poisoning without necessarily requiring the use of violent or destructive physical force. See La.Rev.Stat. § 14:33(b) (defining “battery” as “the intentional administration of a poison or other noxious liquid or substance to another”); id. § 14:2(3) (defining “dangerous weapon” to include a “gas, liquid, or other substance, ... which," }, { "docid": "14256055", "title": "", "text": "that the state need only prove beyond reasonable doubt that the defendant \"cause[d] bodily injury to another”). Thus, it appears that under the provision of the Texas assault statute at issue a defendant “could be convicted ... for an injury caused not by physical force, but by guile, deception, or deliberate omission.” Perez-Vargas, 414 F.3d at 1286 (quoting Chrzanoski v. Ashcroft, 327 F.3d 188, 195 (2d Cir.2003)) (emphasis added). Because section 22.01(a)(1) of the Texas Penal Code permits convictions based on the mere causation of physical injury without proof of the use, attempted use, or threatened use of physical force, it does not qualify as a crime of violence under § 2L1.2's definition of that term. Even if Mr. Zuniga-Soto had been charged with intentionally or knowingly (but not recklessly) causing bodily injury to a public servant, the focus of the Texas statute on the consequences of his conduct rather than the means by which he caused bodily injury deprives the statute of Comment l(B)(iii)’s requisite element of physical force. Indeed, the Fifth Circuit has concluded that this exact provision of the Texas Penal Code did not satisfy § 16(a)’s virtually identical definition of “crime of violence.” United States v. Villegas-Hernandez, 468 F.3d 874, 879 (5th Cir.2006) (“[T]he government would not need to show the defendant used physical force against the person or property of another. Thus, use of force is not an element of assault under section 22.01(a)(1) [of the Texas Penal Code], and the assault offense does not fit subsection 16(a)'s definition for crime of violence.”)." }, { "docid": "17908819", "title": "", "text": "it is the act of employing poison knowingly as a device to cause physical harm. That the harm occurs indirectly, rather than directly (as with a kick or punch), does not matter.” (alteration omitted)); see also United States v. De La Fuente, 353 F.3d 766, 770-71 (9th Cir. 2003) (concluding that a threat of anthrax poisoning constituted a “threatened use of physical force” because the defendant’s “letters clearly threatened death by way of physical contact with anthrax spores”). Further Villavicencio-Burruel remains the law of this circuit. Absent intervening higher authority, “a three-judge panel may not overrule a prior decision of the court.” Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc). Finally, Dimaya does not compel a different conclusion. In Dimaya, we concluded that 8 U.S.C. § 1101(a)(43)(F)’s definition of “crime of violence” was void for vagueness as it related to 18 U.S.C. § 16(b). 803 F.3d at 1120 (citing Johnson v. United States, - U.S. -, 135 S.Ct. 2551, 2558, 192 L.Ed.2d 569 (2015)); see also United States v. Hernandez-Lara, 817 F.3d 651, 652 (9th Cir. 2016) (per curiam). However, Dimaya did not “cast any doubt on the constitutionality of 18 U.S.C. § 16(a)’s definition of a crime of violence.” 803 F.3d at 1120 n.17. Arellano Hernandez does not challenge the constitutionality of § 16(a). Thus, applying our precedent,, section 422 is categorically a crime of violence. The “attempt” portion of Arellano Hernandez’s conviction does not alter our determination that the conviction is a crime of violence. We have “generally' found attempts to commit crimes of violence, enumerated or not, to be themselves crimes of violence.” United States v. Riley, 183 F.3d 1155, 1160 (9th Cir. 1999); cf. 8 U.S.C. § 1101(a)(43)(U) (providing that an aggravated felony includes the attempt to commit the offense). California’s attempt statute is coextensive with an “attempt” at common law. United States v. Saavedra-Velazquez, 578 F.3d 1103, 1110 (9th Cir. 2009). Therefore, Arellano Hernandez’s conviction for attempted criminal 'threats is categorically a crime of violence. B. Arellano Hernandez was convicted of violating California Penal Code section 422, which can be punished" }, { "docid": "23374371", "title": "", "text": "destroy, amputate, or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or 3. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person; or 4. In the course of and in furtherance of the commission or attempted commission of a felony or of immediate flight therefrom, he, or another participant if there be any, causes serious physical injury to a person other than one of the participants. N.Y. Penal Law § 120.10 (1996). An offense qualifies as a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii) if it either (1) “ ‘has as an element the use, attempted use, or threatened use of physical force against the person of another’ under the definition’s ... ‘element’ prong” or (2) “constitutes one of the crimes listed in the ‘enumerated offense’ prong of the definition.” Grajeda, 581 F.3d at 1189-90 (quoting U.S.S.G. § 2L1.2, cmt. n. l(B)(iii) (2006)). We address in turn whether a conviction under § 120.10 categorically qualifies as a crime of violence under the element prong or the enumerated offense prong of the Section 2L1.2 definition. 1. Element prong “We have made clear that the force required under the element prong of the § 2L1.2 crime of violence definition ‘must actually be violent in nature.’ ” United States v. Espinoza-Morales, 621 F.3d 1141, 1147 (9th Cir.2010). In addition to requiring a certain degree of force, “a predicate offense must [also] require intentional use, attempted use, or threatened use of force to constitute a crime of violence under § 2L1.2; neither recklessness nor negligence is enough.” United States v. Melchor-Meceno, 620 F.3d 1180, 1184 (9th Cir.2010). New York Penal Law § 120.10 is over-broad because it does not prohibit only conduct that involves an intent to injure. In particular, a defendant can be convicted under subsections (3) or (4) of § 120.10 without having an intent to injure. A defendant can be convicted of first degree" }, { "docid": "14719923", "title": "", "text": "for attempted aggravated assault does not categorically qualify as a crime of violence because Arizona’s aggravated assault statute criminalizes non-violent conduct, see State v. Fierro, 166 Ariz. 539, 804 P.2d 72, 83 (1990) (“[I]t would be possible to commit aggravated assault without the use or threat of violence.”). As an initial matter, we must consider whether the use or threat of violence is an element of generic aggravated assault. It is not. ‘We derive the meaning of an enumerated Guidelines crime not from the offense’s ordinary meaning but rather by surveying the Model Penal Code and state statutes to determine how they define the offense.” Esparza-Herrera, 557 F.3d at 1023. Neither Gomez-Hernandez nor the Government has provided us with a survey of the Model Penal Code and state statutes. Based on our independent review, the threat or use of violence is not an element of the Model Penal Code’s definition of aggravated assault, Model Penal Code § 211.1, or a majority of state statutes. We therefore conclude that the threat or use of violence is not an element of generic aggravated assault. Nevertheless, the question remains whether Arizona’s aggravating factors are coextensive with those of the generic offense. If not, then conviction of attempted aggravated assault in Arizona would not categorically match the generic crime of attempted aggravated assault, because the defendant did not necessarily attempt to commit all of the elements of generic aggravated assault. Under the Model Penal Code, “[a] person is guilty of aggravated assault if he: (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.” Model Penal Code § 211.1 (emphases added). Consistent with this definition, the Eleventh Circuit concluded that “[t]he generic offense of ‘aggravated assault’ under § 2L1.2 of the Guidelines involves a criminal assault accompanied by the aggravating factors of either the intent to cause serious bodily injury to the victim or the use of a" }, { "docid": "14725324", "title": "", "text": "2L1.2. A crime could thus be an aggravated felony for § 1326(b)(2) purposes but not a crime of violence for § 2L1.2 purposes. . Although the statute contains no express mens rea requirement as to any element, New Mexico courts have consistently held that aggravated assault is a general-intent crime. See, e.g., Manus, 597 P.2d at 284 (explaining that the state must prove that the act constituting aggravated assault \"was done with a general criminal intent”); State v. Bachicha, 111 N.M. 601, 808 P.2d 51, 54 (N.M.Ct.App.1991) (\"Proof of general criminal intent is also a necessary element of the offense of aggravated assault.” (citing State v. Cruz, 86 N.M. 455, 525 P.2d 382 (N.M.Ct.App.1974))). For crimes without any express statutory mens rea requirement, we look to how state courts have construed the offense. See McFalls, 592 F.3d at 716. . Under the Model Penal Code, a person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon; or (c) attempts by physical menace to put another in fear of imminent serious bodily injury. Model Penal Code § 211.1(1). LaFave does not discuss insults, but notes that spoken threats do not constitute assault. 2 LaFave, Substantive Criminal Law § 16.3(b) (\"[Tjhreatening words alone, without any overt act to carry out the threat ... will not do.”). . Ramon Silva addressed the same statute at issue here. A divided panel of the Tenth Circuit held that the \"menacing conduct” prong of the New Mexico aggravated-assault statute was a crime of violence when committed with a deadly weapon, but did not address the \"insulting language\" prong. See 608 F.3d at 670 (”[W]e focus our analysis on 'apprehension causing’ aggravated assault.”). . Even if the use of a deadly weapon arguably carries with it a risk that physical force may be used, U.S.S.G. § 2L1.2 does not include a residual clause in its definition of crime of violence. See supra note 2. .Although convictions under the \"insulting language” prong of New" }, { "docid": "22447518", "title": "", "text": "recklessness will suffice). . Injury to a child is committed when a person \"intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual: (1) serious bodily injury; (2) serious mental deficiency, impairment, or injury; or (3) bodily injury.” Tex. Penal Code Ann. § 22.04(a) (2002). . This interpretation also comports with our assessment, infra, that not only must force be used intentionally, but such use must also be “an element” of the predicate offense. . The panel explicitly ruled that \"[b]ecause the Texas crime of intoxication assault has as an element the use of force against the person of another, we conclude that the district court did not err in imposing the 16-level enhancement.” United States v. Vargas-Duran, 319 F.3d 194, 199 (5th Cir.2003) (emphasis added). .Our ruling on the \"element” requirement of this Sentencing Guideline is consistent with that of the Second Circuit in Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir.2003). In Chrzanoski, the Government argued that, while the state statute in question did not expressly identify \"the use, attempted use, or threatened use” of physical force as an ele ment, it was implicit in the statute’s requirement that physical injury be caused. Id. at 193. The Second Circuit rejected the Government's argument and concluded that there was a difference between the use of force and the causation of injury. Id. at 194. We agree. DeMOSS, Circuit Judge, Specially concurring in part: I agree with Judge Clement’s majority opinion that under the definition of “crime of violence” in the 2001 version of U.S.S.G. § 2L1.2 the predicate offense here in Vargas-Duran (i.e., intoxication assault under Tex. Pen.Code Ann. § 49.07) is not a “crime of violence” because: A. That predicate offense is not specifically named in the Guideline definition; and B. That predicate offense does not have as an element “the use or attempted use or threatened use of physical force against the person of another,” as Judge Clement so clearly articulates in Part IIIB of her majority opinion. I reach this conclusion" }, { "docid": "17087176", "title": "", "text": "the California statute under which Torres-Miguel was previously convicted, provides: Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of exe cution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment.... Cal.Penal Code § 422(a) (emphasis added). The applicable Sentencing Guideline defines a crime of violence as: [A]ny of the following offenses ...: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses ..., statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense ... that has as an element the use, attempted use, or threatened use of physical force against the person of another. U.S.S.G. § 2L1.2 cmt. n. l(B)(iii) (emphasis added). We have not previously considered whether California Penal Code § 422(a) categorically constitutes a crime of violence under this definition. Our sister circuits have divided on the question. Compare United States v. Cruz-Rodriguez, 625 F.3d 274, 277 (5th Cir.2010) (holding a conviction under § 422(a) not categorically a crime of violence), with United States v. Villavicencio-Burruel, 608 F.3d 556, 563 (9th Cir.2010) (holding a conviction under § 422(a) categorically a crime of violence). We now turn to that question, particularly focusing on the rationale offered by the Ninth Circuit in reaching its conclusion that § 422(a) categorically constitutes a crime of violence, a rationale on which the Government heavily relies before us. III. The Ninth Circuit expressly “restfed]” its holding on the “plain text” or “plain language” of § 422(a). Villavicencio-Burruel, 608 F.3d at 562. The court reasoned that because" }, { "docid": "17908817", "title": "", "text": "by imprisonment in the state prison. In our prior precedent regarding section 422, we have held that a conviction under this statute is a crime of violence. See, e.g., United States v. Villavicencio-Burruel, 608 F.3d 556, 563 (9th Cir. 2010); Rosales-Rosales v. Ashcroft, 347 F.3d 714, 717 (9th Cir. 2003). In Villavicencio-Burruel, we concluded that, based on the plain language of the statute, “section 422’s elements necessarily include a threatened use of physical force ‘capable of causing physical pain or injury to another person.’ ” 608 F.3d at 562 (quoting Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)). Arellano Hernandez challenges the validity of this holding in light of (1) other California criminal threat statutes, which are not crimes of violence; (2) Fourth and Fifth Circuit law, concluding section 422 is not a crime of violence; and (3) our recent case Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). None of these arguments provide a basis for us to overturn our prior precedent. First, neither of the other California criminal threat statutes, California Penal Code sections 69 or 71, are analogous to section 422. As we have previously recognized, neither section 69 nor section 71 include the elements of a threatened use of physical force. See Flores-Lopez v. Holder, 685 F.3d 857, 863 (9th Cir. 2012); Bautista-Magallon v. Holder, 584 Fed.Appx. 300, 301 (9th Cir. 2014). Second, contrary decisions of our sister circuits have no effect on our jurisprudence. The Fourth and Fifth Circuits reasoned that section 422 does not qualify categorically as a crime of violence under the element test, because one could threaten to poison another, which is not (under their precedent) “force,” and therefore not a crime of violence. See United States v. Torres-Miguel, 701 F.3d 165, 168-69 (4th Cir. 2012); United States v. Cruz-Rodriguez, 625 F.3d 274, 276 (5th Cir. 2010). However, this reasoning has been rejected by the Supreme Court. United States v. Castleman, - U.S.-, 134 S.Ct. 1405, 1415, 188 L.Ed.2d 426 (2014) (“The ‘use of force’ ... is not the act of ‘sprinkling’ the poison;" }, { "docid": "14725346", "title": "", "text": "physical force necessary to satisfy the definition of “vio lent felony” under the ACCA); United States v. Melchor-Meceno, 620 F.3d 1180, 1184 (9th Cir.2010) (holding that Colorado felony menacing statute “is categorically a crime of violence under the element prong of U.S.S.G. § 2L1.2. The nature of the force required ... is in the category of violent active crimes, because it penalizes imminent serious bodily injury, rather than minimal, non-violent touching, and necessarily involves a threat to physical safety, rather than general safety. Furthermore, the predicate offense of menacing, a general intent crime, includes the requisite mens rea of intent for a crime of violence. It requires the defendant to knowingly place another person in fear of an imminent serious bodily harm.”); United States v. Pulliam, 566 F.3d 784, 788 (8th Cir.2009) (“It goes without saying that displaying an operational weapon before another in an angry or threatening manner [in violation of Missouri’s crime of unlawful use of a weapon] qualifies as threatened use of physical force against another person.”). The Licon-Nunez and Silva decisions provide very persuasive authority supporting the district court’s application of the sixteen-level enhancement in the present case on the basis that a prior conviction under N.M. Stat. 30-3-2(A) is categorically a “crime of violence” under the element prong of § 2L1.2. Although our court has not yet addressed whether such a general intent crime includes the requisite mens rea of intent to be deemed a crime of violence or violent felony, I am persuaded by the Fifth and Tenth Circuits’ reasoning with regard to N.M. Stat. § 30-3-2(A). By its plain language — “assaulting or striking at another with a deadly weapon” — Subsection (A) unambiguously includes as an inherent element “the use, attempted use, or threatened use of physical force against another person” and precludes the possibility that the crime was committed with the insufficient mens rea of mere recklessness. Whether RedeMendez committed this offense under the attempted battery theory or the apprehension causing theory of aggravated assault recognized by the New Mexico courts, the result is the same — the requirement of general" }, { "docid": "22765670", "title": "", "text": "607 (1990). Esparza-Herrera, 557 F.3d at 1022. We first consider whether the offense defined by section 245(a)(1) is categorically a crime of violence by assessing whether the “full range of conduct covered by [the statute] falls within the meaning of that term.” United States v. Juvenile Female, 566 F.3d 943, 946 (9th Cir.2009) (quoting Valencia v. Gonzales, 439 F.3d 1046, 1049 (9th Cir.2006)). If so, our inquiry is complete. If not, we turn to the modified categorical approach “to determine if there is sufficient evidence[in the record] to conclude that [Grajeda] was convicted of the elements of the generieally defined crime.” United States v. Vidal, 504 F.3d 1072, 1077 (9th Cir.2007) (en banc) (quoting Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002)) (first alteration in original). Here, because we conclude that section 245(a)(1) is categorically a crime of violence, we do not apply the modified categorical approach. A. An offense is a “crime of violence” for purposes of § 2L1.2(b)(l)(A)(ii) if it either (1) constitutes one of the crimes listed in the “enumerated offense” prong of the def inition, or (2) “has as an element the use, attempted use, or threatened use of physical force against the person of another” under the definition’s second clause, referred to as the “element” prong or test. U.S.S.G. § 2L1.2, cmt. n. l(B)(iii) (2006); see also United States v. Gomez-Leon, 545 F.3d 777, 787-88 (9th Cir.2008) (detailing and labeling the approaches). On appeal, the government argues that assault with a deadly weapon or force likely to cause great bodily injury under section 245(a)(1) requires proof of the use, attempted use, or threatened use of physical force against another person, and that the offense is therefore a crime of violence under the element prong of the § 2L1.2 definition. We agree, and therefore need not address whether section 245(a)(1) also qualifies as an “aggravated assault” under the enumerated offense prong of § 2L1.2. Over the past several years, courts have endeavored to delineate the contours of the various “crime of violence” definitions. See Gomez-Leon, 545 F.3d at 786-88 (providing overview). The most significant advanees" }, { "docid": "22116050", "title": "", "text": "only that it may ignore the facts contained in Calderon-Peña’s indictment and guilty plea, but that it is unable to enhance his sentence because, under the open-ended language in Texas’s statutory offense of child endangerment, the statute might be violated in a non-violent manner. Under the majority’s reasoning, no offense charged under this provision may ever be classified as a crime of violence under § 4B1.2, no matter how brutal the conduct. The majority errs in two ways. First, Vargas-Duran did not depend on this “any set of facts” language. Vargas-Duran, 356 F.3d at 605. In Vargas-Duran, the question before our court was whether the defendant’s prior intoxication assault conviction in Texas could be considered a crime of violence under the same “has as an element” language of the Guidelines. Id. at 599-600. The en banc majority, which I joined, held that force must be used intentionally for a given offense to qualify for the enhancement. Id. at 602-03. The majority concluded that because the Texas intoxication assault statute, by definition, does not require the proof of any mens rea, the intentional use of force could not be an “element” of the crime. Id. at 606. Vargas-Duran’s analysis stopped at what I have just described as Taylor’s first step. Its reference to the “any set of facts” approach was irrelevant to the case. As the majority acknowledges, the child endangerment statute is not amenable to first-step treatment at least on intentionality, as it can be violated in multiple ways and with various mental states: A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment. Tex. Penal Code Ann. § 22.041(c) (Vernon 2003). The majority and I part company, however, on whether the statute includes conduct that has as an element the use, attempted use, or threatened use of force. This disagreement reflects my second major bone of contention with the majority— on the definition of “elements” of an offense" }, { "docid": "22459931", "title": "", "text": "“crime of violence” under U.S.S.G. § 2L1.2(b)(l)(A)(ii). II. We review the district court’s application of the sentencing guidelines de novo. United States v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir.2004) (en banc). The commentary to the guidelines enumerates offenses that qualify as crimes of violence, among which “aggravated assault” is included. U.S.S.G. § 2L1.2, cmt. n. 1 (B)(iii). The commentary does not define aggravated assault. The pertinent statute provided, in 1979, that “[a] person commits an offense if he commits assault as defined in Section 22.01 of this code if he ... causes bodily injury to a peace officer in the lawful discharge of official duty when he knows or has been informed the person assaulted is a peace officer.” Tex. Penal Code § 22.02(a)(2) (1974). Simple assault did not have use of force as an element. Id. § 22.01 (1974). Fierro-Reyna argues that because the statute merely required conduct amounting to simple assault, and the offense was elevated to aggravated assault only because of the status of the victim as a peace officer, his conviction does not come within the generic, contemporary meaning of the offense of aggravated assault and therefore does not qualify as a “crime of violence.” The government first responds that because Texas labeled Fierro-Reyna’s crime as aggravated assault, and aggravated assault is listed among the enumerated crimes of violence in the sentencing guidelines, no inquiry into the definition of aggravated assault is necessary. The government cites United States v. Rayo-Valdez, 302 F.3d 314 (5th Cir.2002), to support its position that any conviction a state labels with the title of one of the enumerated crimes of violence automatically triggers a sentence enhancement. In Rayo-Valdez, however, we considered whether the enumerated offenses must also include an element of force. We held that even if an enumerated offense does not include an element of force, it remains a crime of violence precisely because it is enumerated. Rayo-Valdez, 302 F.3d at 317. We did not discuss a method for determining whether a given conviction falls within one of the enumerated offense categories; that is the issue we address now." }, { "docid": "17087177", "title": "", "text": "a dwelling, or any other offense ... that has as an element the use, attempted use, or threatened use of physical force against the person of another. U.S.S.G. § 2L1.2 cmt. n. l(B)(iii) (emphasis added). We have not previously considered whether California Penal Code § 422(a) categorically constitutes a crime of violence under this definition. Our sister circuits have divided on the question. Compare United States v. Cruz-Rodriguez, 625 F.3d 274, 277 (5th Cir.2010) (holding a conviction under § 422(a) not categorically a crime of violence), with United States v. Villavicencio-Burruel, 608 F.3d 556, 563 (9th Cir.2010) (holding a conviction under § 422(a) categorically a crime of violence). We now turn to that question, particularly focusing on the rationale offered by the Ninth Circuit in reaching its conclusion that § 422(a) categorically constitutes a crime of violence, a rationale on which the Government heavily relies before us. III. The Ninth Circuit expressly “restfed]” its holding on the “plain text” or “plain language” of § 422(a). Villavicencio-Burruel, 608 F.3d at 562. The court reasoned that because the elements of § 422(a) “necessarily include a threatened use of physical force capable of causing physical pain or injury to another person,” the statute necessarily constituted a crime of violence for purposes of the Guidelines enhancement. Id. (internal quotation marks omitted). That rationale relies on a fundamental misreading of § 422(a). The plain language of the statute requires only that the offender “threatens to commit a crime which will result in death or great bodily injury to another.” Cal.Penal Code § 422(a) (emphasis added). Contrary to the suggestion of the Ninth Circuit, no element of § 422(a) “necessarily include[s] a threatened use of physical force” to accomplish that “result.” This misreading of § 422(a) is critical, for the Guidelines provide that, to constitute a crime of violence, a prior offense must have “as an element the use or ... threatened use of physical force.” See U.S.S.G. § 2L1.2 cmt. n. l(B)(iii) (emphasis added). An offense that results in physical injury, but does not involve the use or threatened use of force, simply does not" }, { "docid": "14256054", "title": "", "text": "as \"[p]ower, violence, or pressure directed against a person or thing,” and \"physical force” as \"[fjorce consisting in a physical act, esp. a violent act directed against a robbery victim”). In United States v. Perez-Vargas, we determined that a Colorado assault statute, which, like section 22.01(a)(1) of the Texas Penal Code, required only that the offender \"cause[ ] bodily injury,” did not meet the use of physical force requirement in § 2L1.2’s definition of \"crime of violence.” 414 F.3d 1282, 1285 (10th Cir.2005) (quoting Colo.Rev. Stat. § 18-3-204) (emphasis omitted). We noted that the causation requirement employed by the Colorado assault statute, and, in this case, by the Texas assault statute, \"looks to the consequences of the conduct, however applied, whereas the Guidelines look to the type of conduct that causes the injury.” Id. (emphasis added). We have examined caselaw from Texas courts and found no opinion holding that assault on a public servant requires proof of the use, attempted use, or threatened use of physical force. See, e.g., Johnson, 172 S.W.3d at 10 (noting that the state need only prove beyond reasonable doubt that the defendant \"cause[d] bodily injury to another”). Thus, it appears that under the provision of the Texas assault statute at issue a defendant “could be convicted ... for an injury caused not by physical force, but by guile, deception, or deliberate omission.” Perez-Vargas, 414 F.3d at 1286 (quoting Chrzanoski v. Ashcroft, 327 F.3d 188, 195 (2d Cir.2003)) (emphasis added). Because section 22.01(a)(1) of the Texas Penal Code permits convictions based on the mere causation of physical injury without proof of the use, attempted use, or threatened use of physical force, it does not qualify as a crime of violence under § 2L1.2's definition of that term. Even if Mr. Zuniga-Soto had been charged with intentionally or knowingly (but not recklessly) causing bodily injury to a public servant, the focus of the Texas statute on the consequences of his conduct rather than the means by which he caused bodily injury deprives the statute of Comment l(B)(iii)’s requisite element of physical force. Indeed, the Fifth Circuit has" }, { "docid": "17908816", "title": "", "text": "violence” includes any “offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a). California Penal Code section 422(a) (2009) provides: Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison. In our prior precedent regarding section 422, we have held that a conviction under this statute is a crime of violence. See, e.g., United States v. Villavicencio-Burruel, 608 F.3d 556, 563 (9th Cir. 2010); Rosales-Rosales v. Ashcroft, 347 F.3d 714, 717 (9th Cir. 2003). In Villavicencio-Burruel, we concluded that, based on the plain language of the statute, “section 422’s elements necessarily include a threatened use of physical force ‘capable of causing physical pain or injury to another person.’ ” 608 F.3d at 562 (quoting Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)). Arellano Hernandez challenges the validity of this holding in light of (1) other California criminal threat statutes, which are not crimes of violence; (2) Fourth and Fifth Circuit law, concluding section 422 is not a crime of violence; and (3) our recent case Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). None of these arguments provide a basis for us to overturn our prior precedent. First, neither of the" }, { "docid": "4271494", "title": "", "text": "this case, when Gomez pleaded guilty to child abuse, she agreed that the operative facts for her conviction were that she burned her eight-year old child’s feet with a candle, to punish the child, allowing the district court and us to conclude that Gomez necessarily was convicted for a crime of violence when she pled guilty under the Maryland child abuse statute with those admitted facts. See Shepard, 544 U.S. at 26, 125 S.Ct. 1254 (approving use of the “colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant”). We can therefore be sure that Gomez’s 1999 conviction “had an element of the use ... of physical force” because she admitted to using violent physical force against her son. And because burning her son was the only form of abuse alleged in her case, we can also be sure that Gomez “necessarily admitted” to the use of violent physical force and, moreover, that the trial judge was “actually required to find” that fact in order to accept the guilty plea. The Ninth Circuit has applied the modified categorical approach to virtually the same circumstances to determine that a child abuse conviction was a predicate violent offense for sentencing enhancement. See United States v. Lopez-Patino, 391 F.3d 1034 (per curiam) (9th Cir.2004). In Lopez-Patino, the court considered whether the defendant’s prior Arizona child-abuse conviction was a crime of violence under the illegal reentry Guidelines (as are applicable here). The court recognized that a violation of the Arizona law, which criminalized “caus[ing] a child or vulnerable adult to suffer physical injury or abuse,” was not categorically a crime of violence “because a person could ‘cause a child’ physical injury without the use of force,” 391 F.3d at 1037. Nonetheless, it then used the modified categorical approach and held that the sentencing enhancement was appropriate because the indictment there made it clear that the defendant had been convicted as a result of a violent act. Id. at 1038; see also United States v. Tucker, 641 F.3d 1110, 1124-25 (9th Cir.2011) (holding that defendant’s prior Nevada" }, { "docid": "23374372", "title": "", "text": "2L1.2, cmt. n. l(B)(iii) (2006)). We address in turn whether a conviction under § 120.10 categorically qualifies as a crime of violence under the element prong or the enumerated offense prong of the Section 2L1.2 definition. 1. Element prong “We have made clear that the force required under the element prong of the § 2L1.2 crime of violence definition ‘must actually be violent in nature.’ ” United States v. Espinoza-Morales, 621 F.3d 1141, 1147 (9th Cir.2010). In addition to requiring a certain degree of force, “a predicate offense must [also] require intentional use, attempted use, or threatened use of force to constitute a crime of violence under § 2L1.2; neither recklessness nor negligence is enough.” United States v. Melchor-Meceno, 620 F.3d 1180, 1184 (9th Cir.2010). New York Penal Law § 120.10 is over-broad because it does not prohibit only conduct that involves an intent to injure. In particular, a defendant can be convicted under subsections (3) or (4) of § 120.10 without having an intent to injure. A defendant can be convicted of first degree assault under subsection (3) if serious physical injury occurs while he “recklessly engages in conduct which creates a grave risk of death to another person,” whether or not he has an intent to injure. N.Y. Penal Law § 120.10(3). Furthermore, a defendant can be convicted under subsection (4) if serious physical injury occurs “[i]n the course of and in furtherance of the commission or attempted commission of a felony or of immediate flight therefrom.” Id. § 120.10(4). As the Second Circuit has observed, subsection (4) “replaces the intent to injure requirement traditionally associated with the crime of assault with the intent to commit the underlying felony.” Langston v. Smith, 630 F.3d 310, 315 (2d Cir.2011). Thus, a defendant can also be convicted of first degree assault under subsection (4) without having an intent to injure. As a result, a conviction under § 120.10 does not qualify as a crime of violence under the element prong of § 2L1.2. 2. Enumerated Offense Prong An offense may also qualify as a crime of violence if it falls" } ]

[ { "docid": "22041553", "title": "", "text": "Mr. Justice Brandéis delivered the opinion of the Court. The Arbitration Law of New York, enacted April 19, 1920, c. 275, and amended March 1, 1921, c. 14, declares that a provision in a written contract to settle by arbitration a controversy thereafter arising between the parties “ shall be valid, enforcible and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.” It authorizes the Supreme Court, or a judge thereof, to direct, upon the application of a party to such an agreement, that the arbitration proceed in the manner so provided; to appoint an arbitrator for the other party, in case he fails to avail himself of the method prescribed by the contract; and to stay trial of the action, if suit has been begun. The law applies to contracts made before its enactment, if the controversy arose thereafter. Matter of Berkovitz v. Arbib & Houlberg, 230 N. Y. 261, 270, 271. Prior to this statute an agreement to arbitrate was legal in New York and damages were recoverable for a breach thereof. Haggart v. Morgan, 5 N. Y. 422, 427. But specific performance of the promise would not be enforced; the promise could not be pleaded in bar of an action; and it would not support a motion to stay. Finucane Co. v. Board of Education, 190 N. Y. 76, 83. These limitations upon the enforcement of a promise to arbitrate had been held to be part of the law of remedies. Meacham v. James town, etc. R. R. Co., 211 N. Y. 346, 352. The purpose of the statute was to malee specific performance compellable. 230 N. Y. 261, 269. Whether agreements for arbitration of disputes arising under maritime contracts are within the scope of the statute, and whether, if so construed and applied, the state law conflicts with the Federal Constitution, are the questions for decision. Proceeding under the Arbitration Law, the Red Cross Line applied to the Supreme Court of the State, on April 12, 1921, for an order directing the Atlantic Fruit Company to join" } ]

[ { "docid": "22295490", "title": "", "text": "select the parties to determine it because such a course of action would substitute the master or the court for the parties’ appraisers, and would thus make a new agreement for them, which no court may lawfully- do. The answer to this contention, however, is that it is not the court but the defaulter himself who by his own refusal to perform his contract deprives himself of the benefit of the appraisers to be chosen by the parties; that it does not lie in his mouth to say that the court may not select the valuers as long as he wrongfully refuses to do so, and that he is estopped from taking advantage of his own wrong to prevent the complainant from successfully invoking the aid of a court of equity to compel him to perform his agreement. .The authorities upon this subject are not entirely in accord, but the more cogent reasons and the weight of authority sustain these salutary rules: Where in a contract of sale of real estate at a price to be fixed by appraisers chosen by the parties, the stipulation for the valuers is not a condition nor the essence of the agreement, but is subsidiary or auxiliary to its main purpose and scope, and the parties may not be left or placed in statu quo by a refusal to enforce the contract, a 'court of equity may determine the price itself, by its master or by appraisers of its own selection, and may enforce specific performance of the agreement of sale.- But where the stipulation for the appraisers is a condition or the essence of the contract of sale, and a refusal to enforce it will leave the parties in their original situations when the agreement was made, a court of equity will not specifically enforce it. Union Pac. Ry. Co. v. Chicago, R. I. & P. Ry. Co., 51 Fed. 309, 330, 2 C. C. A. 174, 244; Tscheider v. Biddle, 4 Dill. 58, 62, Fed. Cas. No. 14,210; Cherryvale Water Co. v. City of Cherryvale, 65 Kan. 219, 69 Pac. 176, 180;" }, { "docid": "21527650", "title": "", "text": "274, 68 L. Ed. 583. Where there is no such statute, the award will be given effect “in any appropriate proceeding at law, or in equity.” Red Cross line v. Atlantic Fruit Co., 264 U. S. 109,121, 44 S. Ct. 274, 276, 68 L. Ed. 582, and see Bayne v. Moms, 1 Wall. 97, 17 L. Ed. 495; Burchell v. Marsh, 17 How. 344, 15 L. Ed. 96; Farthaus v. Ferrer, 1 Pet. 222, 7 L. Ed. 121; Davy v. Faw, 7 Cranch, 171, 3 L. Ed. 305. Where the arbitration agreement is executory, specific performance to compel arbitration has been denied. Red Cross Line v. Atlantic Fruit Co., supra, pages 120,121 of 264 U. S., 44 S. Ct. 274. Such a breach will “support an action for damages” (Id., page 121 of 264 U. S., 44 S. Ct. 274, 276) and may be pleaded m bar where the arbitration was confined to furnishing essential evidence of specific facts and such form of evidence is a condition precedent to suit (Red Cross Line v. Atlantic Fruit Co., supra, page 121 of 264 U. S., 44 S. Ct. 274, and the cases above eited from the Supreme Court and this court upholding validity of arbitration provisions in construction contracts). Here the refusal to arbitrate is pleaded by the defendants both in bar and as a counterclaim. The plea is that there were disputes as to certain work estimates (which involved the character of the material handied) and as to the alteration of the line ordered by the engineer being such as “materially changed the character of the work.” Whatever may be said as to the controversy concerning the estimates, the contract expressly provided that, where an alteration by the engineer materially changed the character of the work, the parties should agree in writing as to the reduced or increased compensation therefor “before the commencement of t]le work e0Yered tllereby » Obviously, the agreement was that the compensation for the work on the changed part of the line was an express condition precedent to doing such work and where the parties could" }, { "docid": "20947032", "title": "", "text": "Prospect Park & C. I. R. Co. v. Coney Island B. R. Co., 144 N.Y. 152, 39 N.E. 17, 26 L.R.A. 610 (1894) ; McDonough v. Southern Oregon Mining Co., Ltd., 177 Or. 136, 159 P.2d 829, 161 P.2d 786, 164 A.L.R. 788 (1945); Rector of St. David’s v. Wood, 24 Or. 396, 34 P. 18 (1893); Edison Illuminating Co. v. Eastern Pennsylvania Power Co., 253 Pa. 457, 98 A. 652 (1916); Municipal Gas Co. v. Lone Star Gas Co. (Tex.Civ.App.), 259 S.W. 684 (1924), aff’d 117 Tex. 331, 3 S.W.2d 790, 58 A.L.R. 797 (1928); Chesapeake & Ohio R. Co. v. Williams Slate Co., 143 Va. 722, 129 S.E. 499 (1925); Grubb v. Starkey, 90 Va. 831, 20 S.E. 784 (1894). In accord, Restatement of Contracts § 371, Comment a (1932). . In Grayson-Robinson Stores, Inc. v. Iris Construction Corp., 8 N.Y.2d 133, 202 N.Y.S.2d 303, 168 N.E.2d 377 (1960), the Court granted specific performance of an arbitration award to construct a store in a shopping center. This contract was in the form of a written agreement between Grayson and Iris whereby Iris undertook to build on its shopping center tract a building to be rented to Grayson for use as a retail department store for a term of 25 years. The contract contained a clause providing for arbitration of disputes and, when Iris refused to construct the building, Grayson submitted the matter to arbitration. The arbitrators ordered Iris to proceed with construction. Iris refused to obey the award and Grayson took the matter to court. Iris argued that specific enforcement of the award would be contrary to public policy because it would amount to the granting of specific performance of a building contract requiring long-continued supervision of the court. In affirming the decree awarding specific performance, the Court said: “Clearly there is no binding rule that deprives equity of jurisdiction to order specific performance of a building contract. At most there is discretion in the court to refuse such a decree.” . See Chrysler Motors Corp. v. Tom Livizos Real Estate, Inc., 210 A.2d 299 (Del.Ch. 1965), where" }, { "docid": "22295491", "title": "", "text": "be fixed by appraisers chosen by the parties, the stipulation for the valuers is not a condition nor the essence of the agreement, but is subsidiary or auxiliary to its main purpose and scope, and the parties may not be left or placed in statu quo by a refusal to enforce the contract, a 'court of equity may determine the price itself, by its master or by appraisers of its own selection, and may enforce specific performance of the agreement of sale.- But where the stipulation for the appraisers is a condition or the essence of the contract of sale, and a refusal to enforce it will leave the parties in their original situations when the agreement was made, a court of equity will not specifically enforce it. Union Pac. Ry. Co. v. Chicago, R. I. & P. Ry. Co., 51 Fed. 309, 330, 2 C. C. A. 174, 244; Tscheider v. Biddle, 4 Dill. 58, 62, Fed. Cas. No. 14,210; Cherryvale Water Co. v. City of Cherryvale, 65 Kan. 219, 69 Pac. 176, 180; Town of Bristol v. Bristol & Warren Waterworks, 19 R. I. 413, 34 Atl. 359, 361, 32 L. R. A. 740; Fry on Specific Performance, §§ 247, 342, 348; Waterman on Specific Performance, §§ 44, 47; Pomeroy on Contracts, §§ 150, 151; Coles v. Peck, 96 Ind. 333, 339, 49 Am. Rep. 161; Herman v. Babcock, 103 Ind. 461, 3 N. E. 142; Biddle v. Ramsey, 52 Mo. 153, 159; Black v. Rogers, 75 Mo. 441, 449; Braintree Water Supply Co. v. Braintree, 146 Mass. 482, 487, 16 N. E. 420; Parson v. Ambos (Ga.) 48 S. E. 696; Hall v. Warren, 9 Ves. 605; Gourlay v. Duke of Somersett, 19 Ves. 429; Richardson v. Smith, L. R. 5 Ch. 648; Dinham v. Bradford, L. R. 5 Ch. 519. The case under consideration falls far within the first rule. The main purpose and scope of this contract was the construction of the waterworks and the supply of water to the cityr and its inhabitants. The stipulation for a determination of the price by appraisers in" }, { "docid": "22295485", "title": "", "text": "but one option. When it had exercised it, its power to choose was exhausted. An election once made estops the elector. He may not revoke his choice and select another alternative. Bishop on Contracts, § 784; Childs v. Stoddard, 130 Mass. 110; Brown v. Insurance Co., 1 El. & El. 853. The irrevocable offer and the irrevocable acceptance attested the meeting of the minds of the parties, and constituted a contract of sale of the waterworks. Cherryvale Water Co. v. City of Cherryvale, 65 Kan. 819, 69 Pac. 176; Rockport Water Co. v. Inhabitants of Rockport, 161 Mass. 279, 37 N. E. 168; Braintree Water Supply Co. v. Braintree, 146 Mass. 488, 487, 16 N. E. 480; Chadsey v. Condley, 63 Kan. 853, 855, 63 Pac. 663; 21 Am. & Eng. Enc. of Law (3d Ed.) 929. But counsel for the city contend that a court of equity may not enforce the specific performance of this contract, because it provides that the price based upon the productive worth shall be appraised by four experts to be chosen by the parties and another to be selected by the four. They invoke the rules that a court of equity will not specifically enforce an agreement to arbitrate a disputed claim (Oregon & W. Mtg. Sav. Bank v. American Mtg. Co. [C. C.] 35 Fed. 22; Tobey v. County of Bristol, Fed. Cas. No. 14,065), or a contract of sale wherein the price is not fixed, but is to be determined by appraisers (Milnes v. Gery, 14 Ves., Jr., 400; King v. Howard, 27 Mo. 21; Van Doren v. Robinson, 16 N. J. Eq. 256); and they insist that these rules apply to cases of the nature of that in hand, where the agreement of sale at a valuers’ price is a part of a lease or of a broader contract (Agar v. Mackalew, 2 Sim. & S. 418, 432; Greason v. Keteltas, 17 N. Y. 491; City of St. Louis v. St. Louis Gaslight Co., 70 Mo. 69, 94; Montgomery Gaslight Co. v. City of Montgomery, 87 Ala. 245, 6 South. 113," }, { "docid": "22295486", "title": "", "text": "be chosen by the parties and another to be selected by the four. They invoke the rules that a court of equity will not specifically enforce an agreement to arbitrate a disputed claim (Oregon & W. Mtg. Sav. Bank v. American Mtg. Co. [C. C.] 35 Fed. 22; Tobey v. County of Bristol, Fed. Cas. No. 14,065), or a contract of sale wherein the price is not fixed, but is to be determined by appraisers (Milnes v. Gery, 14 Ves., Jr., 400; King v. Howard, 27 Mo. 21; Van Doren v. Robinson, 16 N. J. Eq. 256); and they insist that these rules apply to cases of the nature of that in hand, where the agreement of sale at a valuers’ price is a part of a lease or of a broader contract (Agar v. Mackalew, 2 Sim. & S. 418, 432; Greason v. Keteltas, 17 N. Y. 491; City of St. Louis v. St. Louis Gaslight Co., 70 Mo. 69, 94; Montgomery Gaslight Co. v. City of Montgomery, 87 Ala. 245, 6 South. 113, 4 L.R.A. 616. The general rule that contracts for the sale and conveyance of real .estate may be specifically enforced by a court of equity has become firmly established, upon the ground that actions at law for the breaches of these contracts do not place the parties in the same situation in which they were before the agreements were made, and for that reason do not afford adequate relief. Contracts to arbitrate disputed claims escape this rule, because the failure to enforce them leaves the parties in their original situations, with their original claims and rights of actions. Separate agreements of sale of real estate, in which the prices have not been agreed upon or in which they are to be fixed by valuers to be chosen by the parties, do not fall within the rule for the same reason, so long as they have not been executed in whole or in any substantial part. In contracts of this class the price is an essential condition, which determines the nature and the value of the" }, { "docid": "2227222", "title": "", "text": "which were to govern the appraiser. For here the contract, which constituted a settlement of vexatious litigation, has been fully performed by the plaintiff, who cannot be restored to status quo ante, and the appraisal clause related to but one item of the settlement contract. On those facts the court should “substitute itself” for the deceased appraiser. Gunton v. Carroll, 101 U.S. 426, 430, 432, 25 L.Ed. 985; Texas Co. v. Z. & M. Independent Oil Co., 2 Cir., 156 F.2d 862, 867, 167 A.L.R. 719; Annotation, 167 A.L.R. 727, 743, 759; Cold Metal Process Co. v. United Eng. & Foundry Co., 3 Cir., 107 F.2d 27, 31, 32; Williams v. Cow Gulch Oil Co., 8 Cir., 270 F. 9, 12; Castle Creek Water Co. v. City of Aspen, 8 Cir., 146 F. 8, 11-13, 8 Ann.Cas. 660; Williston, Contracts (Rev. ed.) § 1421; Pomeroy, Specific Performance (3d ed.) 387-389. Reversed. Bozant v. Bank of New York, 2 Cir., 156 F.2d 787, 790; Dixon v. American Telephone and Telegraph Co., 2 Cir., 159 F.2d 863, 864; Boro Hall Corp. v. General Motors Corp., 2 Cir., 164 F.2d 770, 772; Sarnoff v. Ciaglia, 3 Cir., 165 F.2d 167, 168; Avrick v. Rockmont Envelope Co., 10 Cir., 155 F.2d 568, 571, 573; Krug v. Santa Fe Pac. R. Co., 81 U.S. App.D.C. 288, 158 F.2d 317, 319, 320; cf. Kennedy v. Silas Mason Co., 68 S.Ct. 1031. See Mutual Benefit Health & Acc. Ass’n v. United Casualty Co., 1 Cir., 142 F.2d 390, 393; Tabor v. Craft, 217 Ala. 276, 116 So. 132, 133, 134. See Commissioner of Internal Revenue v. Marshall, 2 Cir., 125 F.2d 943, 946, 141 A.L.R. 445; Andrews v. Commissioner, 2 Cir., 135 F.2d 314, 317; Westchester County Park Commission v. United States, 2 Cir., 143 F.2d 688, 692. The problems are different, for example, in cases of rate-making, taxation, reorganization, or condemnation. See Bonbright, Valuation of Property (1937) 4. Omaha v. Omaha Water Co., 218 U. S. 180, 202, 203, 30 S.Ct. 615, 54 L.Ed. 991, 48 L.R.A.,N.S., 1084; Los Angeles Gas & Electric Corp. v. Railroad" }, { "docid": "22295488", "title": "", "text": "contract, and until it is fixed the parties may be left in statu quo by the mere refusal to enforce the agreement. They fall so near the line, however, that a court of equity will readily enforce an agreement of sale for a fair price, or for the reasonable value of the property, on the ground that that is certain which can be made certain, and that the court may itself ascertain the fair price or the reasonable value. Milnes v. Gery, 14 Ves., Jr., 400, 404. Thus far the two rules that equity will specifically enforce a contract for the sale of real estate and that it will not enforce an agreement to arbitrate claims or to appraise property run pari passu. There is, however, a class of cases to which both rules appear to apply, but in which the application of one necessarily excludes the use of the other. They are cases in which a contract of sale of real estate springs from a broader agreement, which has been partly performed, so that the parties may not be placed in their original situations by a mere refusal to enforce the agreement of sale, and the stipulation for the appraisal of the value or the determination of the price is a subsidiary or auxiliary part of the same contract. In cases of this nature it is clearly inequitable to permit a party to an agreement to deprive a complainant of its benefit by his own wrong by means of his unjustifiable refusal to appoint the appraisers which he has solemnly agreed to select, and In that way to avoid the discharge of his obligation:Large amounts of money are often invested in reliance upon such an agreement, and the defaulting party frequently receives the substantial benefits of the contract before he avails himself of this device to repudiate it. He then refuses to name appraisers, and argues that his contract is that the price of the property shall be determined by persons whom the parties shall select, and that a court of equity may not lawfully fix the price or" }, { "docid": "22295487", "title": "", "text": "4 L.R.A. 616. The general rule that contracts for the sale and conveyance of real .estate may be specifically enforced by a court of equity has become firmly established, upon the ground that actions at law for the breaches of these contracts do not place the parties in the same situation in which they were before the agreements were made, and for that reason do not afford adequate relief. Contracts to arbitrate disputed claims escape this rule, because the failure to enforce them leaves the parties in their original situations, with their original claims and rights of actions. Separate agreements of sale of real estate, in which the prices have not been agreed upon or in which they are to be fixed by valuers to be chosen by the parties, do not fall within the rule for the same reason, so long as they have not been executed in whole or in any substantial part. In contracts of this class the price is an essential condition, which determines the nature and the value of the contract, and until it is fixed the parties may be left in statu quo by the mere refusal to enforce the agreement. They fall so near the line, however, that a court of equity will readily enforce an agreement of sale for a fair price, or for the reasonable value of the property, on the ground that that is certain which can be made certain, and that the court may itself ascertain the fair price or the reasonable value. Milnes v. Gery, 14 Ves., Jr., 400, 404. Thus far the two rules that equity will specifically enforce a contract for the sale of real estate and that it will not enforce an agreement to arbitrate claims or to appraise property run pari passu. There is, however, a class of cases to which both rules appear to apply, but in which the application of one necessarily excludes the use of the other. They are cases in which a contract of sale of real estate springs from a broader agreement, which has been partly performed, so that" }, { "docid": "13024304", "title": "", "text": "would name its representative at an early date. The city manager complied with the instructions of the commissioners. Again on February 7, 1918, the city manager wrote the water company that the city had been somewhat delayed in finding a satisfactory man for the work of appraising the property of the water company, but hoped that the water company would proceed, so there would be no undue delay in getting results, and that the city would appoint an appraiser as soon as possible. It thus will be seen that all the acts of the city and the correspondence between it and the water company subsequent to the resolution of November 9 simply related to the matter of the valuation of the waterworks system pursuant to said resolution, and it clearly appears from the resolution itself that the mayor and commissioners had no intention of purchasing the waterworks system unless the valuation was known and the proposition submitted to the citizens of Wichita. There can be no specific performance, if the assent of another not a party to the contract is required. Ellis v. Treat, 236 Fed. 120, 149 C. C. A. 330. Right or wrong in their legal attitude, that is all they intended to do, and all they did do. In addition to the compelling force of the authorities hereinbefore referred to, there is another feature of this case which required the court to be sure there was a contract on the part of the city, because in the way the alleged contract has been enforced the city is compelled to pay the valuation fixed by the court, instead of by the three appraisers. As a general rule, an agreement to submit a matter to arbitration or valuation, or an agreement, an essential part of which is that a matter shall be submitted to arbitration, or valuation as for a sale or lease at a price or rent to be fixed by valuers, will not, be specifically enforced, nor will the court itself fix the price or substitute other valuers, since that' would be to make a new contract" }, { "docid": "13024306", "title": "", "text": "for the parties. Where, however, the agreement to submit to valuers or arbitrators is a subordinate or unessential part of the contract, and the defendant refuses to submit, the matter to arbitrators or valuers, the court itself in such a case may make the value by reference to a master or otherwise. We recognize and follow the decision of this court in Castle Creek Water Co. v. City of Aspen, 146 Fed. 8, 76 C. C. A. 516, 8 Ann. Cas. 660, wherein it is held that the arbitration clause in a franchise granted by a city to a water company, such as the one in question in this case, is an unessential part of the franchise contract, and that, so far as the enforcement of a contract to purchase is concerned, it may be enforced in the manner followed by the court below. In the case mentioned, however, the franchise of the water company was to expire in 20 years. Notice of intention on the part of the city to purchase the waterworks system was to be given one year in advance. The opinion in the case says: “Ono year before tbo expiration of the term of the contract, the city gave notice to the complainant that it would ‘purchase said waterworks and appurtenances at the time and in accordance with the provisions of said proposition and ordinances.’ ” Of course by such a notice there could not be any question but that the city of Aspen had elected to purchase the waterworks system, but no such language is found in the record in the present case. The case of Slocum v. City of North Platte, 192 Fed. 252, 112 C. C. A. 510, is another case decided by this court and relied upon by counsel for the water company. So far as the question of contract is concerned, however, it has very little relevancy. In the Slocum Case the city of North Platte appointed its appraiser. The water company also appointed an appraiser. The two appraisers so appointed selected a third, and the three so selected duly appraised" }, { "docid": "3059577", "title": "", "text": "133 N.J.Eq. 270, 31 A.2d 801; Machine Printers Beneficial Association of United States v. Merrill Textile Print Works, Inc., supra. In Goerke Kirch Co. v. Goerke Kirch Holding Co., E. & A.1935, 118 N.J.Eq. 1, at page 4, 176 A. 902, at page 904, it was said that: “A submission to arbitration is essentially a contract. * * * The authority of the arbitrators is derived from the mutual assent of .the parties to the’ terms of submis sion; the parties are bound only to the extent, and in the manner, and under the circumstances pointed out in their agreement, supplemented by the pertinent provisions of the arbitration act, and no further. They have a right to stand upon the precise terms of their contract.” More recently, in McKeeby v. Arthur, 1951, 7 N.J. 174, at pages 181-182, 81 A.2d 1, at page 4, the principles stated in Goerke were restated as follows: “In jurisdictions like our own, where consent arbitration is authorized and approved, by statute, the courts will, on proper occasion, hold the parties to their undertaking, not because the subject matter of the controversy is outside of jurisdiction, but in recognition and enforcement of the agreement of the parties., * * * R.S. 2:40-10, N.J. S.A., taken bodily from the New York statute, provides that a written agreement to submit to arbitration shall be irrevocable except upon such grounds as exist at law or in equity for the revocation of a contract; however the word ‘irrevocable’ as there used has been construed by the New York Court of Appeals to mean that the agreement cannot be revoked at the will of one party to it, not that it cannot be revoked by the mutual consent of the parties.” In the case before us, plaintiff apparently seeks to evoke the common law equitable jurisdiction of this Court independently of the New Jersey statute to achieve a vacation of the award, rendered pursuant to the concededly governing contract, which provided, inter alia, that such award should be final and binding on all parties. Reverting to Goerke, supra, further language," }, { "docid": "3059576", "title": "", "text": "contract between his Union and the employer. Jorgensen v. Pennsylvania R. Co., 1958, 25 N.J. 541, 138 A.2d 24. I cannot agree with defendant’s contention that “the only possible basis for jurisdiction in this Court is the United States Arbitration Act (9 U.S.C. § 1 et seq.) * * The right or duty to arbitrate in this case arises out of the Union contract. Machine Printers Beneficial Association of United States v. Merrill Textile Print Works, Inc., App. Div.1951, 12 N.J.Super. 26, 78 A.2d 834. The contract here mentions neither the Federal Arbitration Act nor that of New Jersey (N.J.R.S. 2A:24-1 et seq., N.J. S.A.). Neither of these Acts is referred to in the complaint. The Federal Act is rendered inapplicable by the provisions of 9 U.S.C. § 1. The arbitration provisions here considered are contractual. The rights and duties of the parties created by the agreement are within the purview of equity jurisdiction. Hoboken Mfrs. R. Co. v. Hoboken R. R., etc., Co., Ch.1942, 132 N.J.Eq. 111, 27 A.2d 150, affirmed E. & A.1943, 133 N.J.Eq. 270, 31 A.2d 801; Machine Printers Beneficial Association of United States v. Merrill Textile Print Works, Inc., supra. In Goerke Kirch Co. v. Goerke Kirch Holding Co., E. & A.1935, 118 N.J.Eq. 1, at page 4, 176 A. 902, at page 904, it was said that: “A submission to arbitration is essentially a contract. * * * The authority of the arbitrators is derived from the mutual assent of .the parties to the’ terms of submis sion; the parties are bound only to the extent, and in the manner, and under the circumstances pointed out in their agreement, supplemented by the pertinent provisions of the arbitration act, and no further. They have a right to stand upon the precise terms of their contract.” More recently, in McKeeby v. Arthur, 1951, 7 N.J. 174, at pages 181-182, 81 A.2d 1, at page 4, the principles stated in Goerke were restated as follows: “In jurisdictions like our own, where consent arbitration is authorized and approved, by statute, the courts will, on proper occasion, hold the" }, { "docid": "2227221", "title": "", "text": "enterprise had no prospective earnings, we are not in a position to determine. We can say, however, that, without such consideration, he could not have come to “an informed judgment which embraces all facts relevant to future earning capacity and hence to present worth.” We hold, therefore, that he did not value Woodstock as a going concern, and thus departed from the requirements of the contract. We conclude, then, that the summary judgment must be reversed because, from what appears on this record, the appraisal was not in accordance with the agreement. Since we base that conclusion on the failure of the appraiser adequately to consider earning figures, we need not consider the following: (1) his alleged failure to make an adequate, examination of the mill; (2) his alleged improper consideration of losses suffered by former operators of the mill; (3) his alleged improper use of the accountants’ report. 3. As the designated appraiser is dead, we think the district court should hear evidence and itself determine the price, applying the standards of clause (5) which were to govern the appraiser. For here the contract, which constituted a settlement of vexatious litigation, has been fully performed by the plaintiff, who cannot be restored to status quo ante, and the appraisal clause related to but one item of the settlement contract. On those facts the court should “substitute itself” for the deceased appraiser. Gunton v. Carroll, 101 U.S. 426, 430, 432, 25 L.Ed. 985; Texas Co. v. Z. & M. Independent Oil Co., 2 Cir., 156 F.2d 862, 867, 167 A.L.R. 719; Annotation, 167 A.L.R. 727, 743, 759; Cold Metal Process Co. v. United Eng. & Foundry Co., 3 Cir., 107 F.2d 27, 31, 32; Williams v. Cow Gulch Oil Co., 8 Cir., 270 F. 9, 12; Castle Creek Water Co. v. City of Aspen, 8 Cir., 146 F. 8, 11-13, 8 Ann.Cas. 660; Williston, Contracts (Rev. ed.) § 1421; Pomeroy, Specific Performance (3d ed.) 387-389. Reversed. Bozant v. Bank of New York, 2 Cir., 156 F.2d 787, 790; Dixon v. American Telephone and Telegraph Co., 2 Cir., 159 F.2d 863," }, { "docid": "16186804", "title": "", "text": "which under the contract he was not compelled to perform, lack of mutuality cannot be urged by the other party as a defense, and while an option to purchase has not expired a plaintiff may elect to purchase, and thus supply the missing quality of mutuality of remedy. Mississippi Glass Co. v. Franzen (C. C. A. 3) 143 F. 501; Mutual Life Ins. Co. v. Stephens et al., 214 N. Y. 488, 108 N. E. 856, L. R. A. 1917C, 809. And this may be done, it would seem, by the filing of a suit for specific performance, if the fact of election be made sufficiently definite. Epstein v. Gluckin, 233 N. Y. 490, 135 N. E. 861. The requirement of mutuality is satisfied, if mutuality of remedy exists at the time the suit is filed. Clark v. Andrew (C. C. A. 5) 11 F.(2d) 958; Incorporated Town of Laurens v. Northern Iowa Gas & Electric Co. (C. C. A. 8) 282 F. 432. Counsel for appellant insist that the rule requiring mutuality of remedy has been so qualified by exception that it has lost its substance and ceased to exist. To this we cannot accede. Confusion has arisen because of efforts, some of them consummated,- to extend its application beyond the principles which led to its adoption. For example, it has been held that a continuing contract will not be enforced specifically, if it is one which, by its terms, plaintiff is permitted to terminate at will. Thus broadly stated, the rule is “restrained by many exceptions.” In Guffey v. Smith, 237 U. S. 101, 35 S. Ct. 526, 59 L. Ed. 856, the Supreme Court, speaking through Mr. Justice Van Devanter, held that: “An oil and gas lease of undeveloped land requiring all expenses to be paid by the lessee, and providing for-reasonable royalties and fixed rental during a designated period of delay, is not so unfair and inequitable as to require that equitable relief be withheld, even where it contains a provision permitting the lessee to surrender it at any time.” He held that the rule -respecting" }, { "docid": "16186809", "title": "", "text": "be useless if appellant should decide not to purchase. The provision for audits and examinations, is an integral and inseparable part of the contract in suit, and equity will not interpose to enforce a part of a contract unless that part is clearly severable from the remainder. It is otherwise where the parties have contemplated a piecemeal performance. Pantages v. Grauman (C. C. A. 9) 191 F. 317, 323; Odessa Tramways v. Mendel, L. R. 8 Ch. D. 235; Adams v. Messinger, 147 Mass. 185,190, 17 N. E. 491, 9 Am. St. Rep. 679; Mutual Life Ins. Co. v. Stephens, 214 N. Y. 488, 108 N. E. 856, L. R. A. 1917C, 809; Hutchinson Gas & Fuel Co. v. Wichita Natural Gas Co. (C. C. A. 8) 267 F. 35. In the ease last cited we said: “The complete performance of a part of the consideration for ah. executory agreement while •another substantial part thereof remains ex-ecutory, and so indefinite and shadowy as to be unenforceable, is fatal to a suit for the specific performance of it.” To the same effect is the holding in Woerheide v. Barber Asphalt Paving Co. (C. C. A. 8) 251 F. 196, that: .'“Complete performance of only one of five or six important executory contract obligations cannot prevent avoidance of the contract, where others equally important remain executory and are uncertain.” As to the subject-matter of the agreement, the ultimate object of purchase and sale, the contract is still wholly executory. The payment of $10 was a consideration merely for the optional privilege; therefore the rule requiring mutuality of remedy applies unless appellant has satisfied its requirements. Its counsel insist that it has done this by the bringing of this suit for specific performance of the entire contract; that it has declared that it is ready, willing, and able to make the examinations, investigations, and audits provided for in the agreement for the purpose of verifying the representations made by appellees, and that it has submitted itself to a conditional decree that would prevent the exercise of its contract privilege to withdraw if the" }, { "docid": "5368735", "title": "", "text": "to perform Ms part thereof, unless the contractor has an adequate remedy at law for the eontractee’s breach. Joy v. St. Louis, 138 U. S. 1, 46, 11 S. Ct. 243, 34 L. Ed. 843; Leavitt v. Windsor Land & Investment Co., 54 F. 439, 442, 443, 4 C. C. A. 425; General Electric Co. v. Westinghouse Electric Co. (C. C.) 151 F. 664, 674, 679, 681; White v. Rankin, 144 U. S. 628, 635, 636, 12 S. Ct. 768, 36 L. Ed. 569; Hartell v. Tilghman, 99 U. S. 547, 549, 556, 25 L. Ed. 357. Third. The adequate remedy at law, which will preclude the grant of specific performance of a contract by a court of equity, must be as certain, prompt, complete, and efficient to attain the ends of justice as a decree of specific performance. Boyce’s Ex’rs v. Grundy, 3 Pet. 210, 215, 7 L. Ed. 655; Williams v. Neely, 134 F. 1, 67 C. C. A. 171, 69 L. R. A. 232; Castle Creek Water Co. v. City of Aspen, 146 F. 8, 14, 76 C. C. A. 516, 8 Ann. Cas. 660. The facts of this ease leave no doubt that the plaintiff has no such remedy at law. Fourth. An injunction against the breach or the continuance of a breach of a contract is a negative decree of specific performance, and the power and dnty of a court of equity to grant such an injunction is even greater, under the rules, principles, and practices in equity, than its power and duty to grant decrees of specific performance. A court of equity may issue its injunction to prevent a violation, or the continuance of a violation, of a contract in eases in which it would not decreo specific performance thereof. Chicago & A. Ry. Co. v. New York, L. E. & W. R. Co. (C. C.) 24 F. 516, 522; Lumley v. Wagner, 1 De G., M. & G. 604; Singer Sewing Machine Co. v. Union Buttonhole & E. Co., Fed. Cas. No. 12,904, 1 Holmes, 253; Western Union Tel. Co. v. Union Pacific" }, { "docid": "13934270", "title": "", "text": "find that the precise point presented has heretofore been considered by an appellate court. In the absence of statute it is the general rule that executory contracts to submit disputes to arbitration will not be specifically enforced. Red Cross Line v. Atlantic Fruit Co., 1924, 264 U.S. 109, 44 S.Ct. 274, 68 L.Ed. 582. Tejas Development Co. v. McGough Bros., 5 Cir., 1947, 165 F.2d 276. Such is the rule as found by the framers of the Restatement of the Law. Restatement, Contracts, § 550 (1932). The Supreme Court of Alabama, announcing the rule, has said: “The courts are almost unanimous in declaring that equity will not decree specific performance of a contract to submit a cause to arbitration, while it will, in proper cases, entertain a bill to enforce an award.” Ex parte Birmingham Fire Ins. Co., 1937, 233 Ala. 370, 172 So. 99, 101. If there be a right to specific performance of an arbitration provision in a collective bargaining agreement we must find it in an act of Congress. The Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq., does not preclude the granting of the relief sought. Graham v. Brotherhood of Locomotive Firemen and Enginemen, 1949, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22. The United States Arbitration Act expressly provides that nothing therein “contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C.A. § 1. In Section 2 it is said: “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.” July 30, 1947, c. 392, § 1, 61 Stat. 669, 9 U.S.C.A. § 2. Section" }, { "docid": "13024305", "title": "", "text": "party to the contract is required. Ellis v. Treat, 236 Fed. 120, 149 C. C. A. 330. Right or wrong in their legal attitude, that is all they intended to do, and all they did do. In addition to the compelling force of the authorities hereinbefore referred to, there is another feature of this case which required the court to be sure there was a contract on the part of the city, because in the way the alleged contract has been enforced the city is compelled to pay the valuation fixed by the court, instead of by the three appraisers. As a general rule, an agreement to submit a matter to arbitration or valuation, or an agreement, an essential part of which is that a matter shall be submitted to arbitration, or valuation as for a sale or lease at a price or rent to be fixed by valuers, will not, be specifically enforced, nor will the court itself fix the price or substitute other valuers, since that' would be to make a new contract for the parties. Where, however, the agreement to submit to valuers or arbitrators is a subordinate or unessential part of the contract, and the defendant refuses to submit, the matter to arbitrators or valuers, the court itself in such a case may make the value by reference to a master or otherwise. We recognize and follow the decision of this court in Castle Creek Water Co. v. City of Aspen, 146 Fed. 8, 76 C. C. A. 516, 8 Ann. Cas. 660, wherein it is held that the arbitration clause in a franchise granted by a city to a water company, such as the one in question in this case, is an unessential part of the franchise contract, and that, so far as the enforcement of a contract to purchase is concerned, it may be enforced in the manner followed by the court below. In the case mentioned, however, the franchise of the water company was to expire in 20 years. Notice of intention on the part of the city to purchase the waterworks system" }, { "docid": "16186808", "title": "", "text": "exercise its option to purchase. * * * It cannot resort to equity for the specific performance of an agreement and remain free to refuse performance on its part.” And again: “The general rule is now thoroughly established in this state that a contract must be mutual in its remedy to warrant a decree for its specific performance. * * * However, it is not essential that the mutuality of remedy shall exist at the inception of the contract.” It will be observed that there is no conflict in the New York decisions, and that the general rule there announced is the one that obtains in this circuit and throughout federal jurisdictions. The suit cannot be upheld on the ground that appellant seeks primarily to make the inspections and investigations that form a part of its option privilege, and are preliminary. to a determination of its willingness and readiness to purchase. In that view, the suit would really be one to compel the specific performance of a merely incidental provision of the contract, which would be useless if appellant should decide not to purchase. The provision for audits and examinations, is an integral and inseparable part of the contract in suit, and equity will not interpose to enforce a part of a contract unless that part is clearly severable from the remainder. It is otherwise where the parties have contemplated a piecemeal performance. Pantages v. Grauman (C. C. A. 9) 191 F. 317, 323; Odessa Tramways v. Mendel, L. R. 8 Ch. D. 235; Adams v. Messinger, 147 Mass. 185,190, 17 N. E. 491, 9 Am. St. Rep. 679; Mutual Life Ins. Co. v. Stephens, 214 N. Y. 488, 108 N. E. 856, L. R. A. 1917C, 809; Hutchinson Gas & Fuel Co. v. Wichita Natural Gas Co. (C. C. A. 8) 267 F. 35. In the ease last cited we said: “The complete performance of a part of the consideration for ah. executory agreement while •another substantial part thereof remains ex-ecutory, and so indefinite and shadowy as to be unenforceable, is fatal to a suit for the specific performance" } ]

[ { "docid": "22530716", "title": "", "text": "regulations) and to allow the sell off or use of preexisting noncompliant inventory but to prohibit stockpiling. This clear purpose and plain meaning cannot be reconciled with the EPA's suggestion that a year-long extension of the designated date of manufacture in the sell-through provisions permissibly leads to a commensurate year-long extension of the mandatory compliance deadlines. The EPA's interpretation creates inconsistency within the full text of the Act, renders the 180-day compliance deadline superfluous, leads to the absurd result of permitting the perpetual delay of the effectiveness of the Formaldehyde Rule, and fails to satisfy the stated purpose of the Act. Accordingly, the Court finds that the Delay Rule is in excess of the EPA's authority under the Formaldehyde Act and is not in accordance with law. See 5 U.S.C. § 706(2)(A). C. Waiver Issue. The EPA contends that this Court should not consider Plaintiffs' allegations in this suit because the issues were not raised before the agency during the rule making procedure. \"As a general rule, we will not review challenges to agency action raised for the first time on appeal.\" Portland General Elec. , 501 F.3d at 1023 (citing Exxon Mobil , 217 F.3d at 1249 ). A party petitioning the court for redress of grievances may waive \"their right to judicial review ... [when] they were not made before the administrative agency, in the comment to the proposed rule, and there are no exceptional circumstances warranting review.\" Id. This rule does not foreclose judicial review, but rather is construed as a waiver that may foreclose consideration of specific arguments. Id. at 1023-24. In general, a court \"will not invoke the waiver rule in [its] review of a notice-and-comment proceeding if an agency has had an opportunity to consider the issue.\" Id. at 1024 (citing Natural Resource Defense Council, Inc. v. EPA , 824 F.2d 1146, 1150-51 (D.C. Cir. 1987) (en banc) ). \"This is true even if the issue was considered sua sponte by the agency or was raised by someone other than the petitioning party.\" Id. (citing Portland General Electric Co. v. Johnson , 754 F.2d" } ]

[ { "docid": "16784184", "title": "", "text": "plaintiff claims on appeal that the import of its argument was and is that DPW in amending its regulations, violated the NHRPDA by arrogating to itself functions which are properly reserved to DOH as the “sole agency” designated in accordance with the NHPRDA to determine statewide health care needs. See 42 U.S.C. § 300m-2. Both HHS and DPW argue that Wilmac has failed to allege any violation of the NHPRDA. DPW argues that the NHPRDA does not give a Medicaid provider a right to challenge Medicaid reimbursement polices. HHS argues that the issuance of a CON does not mean that the state must fund the construction through Medicaid or otherwise. Third, the plaintiff challenges the district court’s refusal to reach the merits of Wilmac’s claim of injury. The court did find that Wilmac had standing to assert claims under the Medicaid statute on behalf of itself as well as on behalf of its Medicaid patients. Nevertheless, the court found that Wilmac had alleged no present injury because Wilmac did not rely on the availability of Medicaid funds in obtaining financing for the addition or in obtaining its certificate of need from DOH. The court found that it was a matter of speculation as to whether Wilmac would construct the new addition, receive Medicaid certification, apply for benefits for the care of Medicaid patients in the new beds and be denied reimbursement of its capital costs. HHS argues, and we agree, that the district court held, at least in the alternative that Wilmac’s claims were premature. Because we affirm the district court’s finding that Wilmac’s claims of injury are prema ture, we need not reach the other assertions of error. We find that Wilmac’s claims are not presently ripe for judicial review. II. We turn to an examination of the ripeness doctrine and its application to the present controversy. As Chief Justice Rehnquist recently observed, “the basic rationale of the ripeness doctrine is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until" }, { "docid": "19618146", "title": "", "text": "guidelines defining \"preventive care\" to include contraceptives; and that the Final Rules do not purport to remove contraceptives from the coverage mandate. 83 Fed Reg. at 57,537. In light of these provisions, what must be provided under the ACA's \"preventive care\" requirement is clear-all FDA-approved \"contraceptive methods, sterilization procedures, and patient education and counseling,\" 77 Fed. Reg. at 8,725-as is who must provide it-any \"group health plan\" or \"health insurance issuer offering group or individual health insurance coverage,\" 42 U.S.C. § 300gg-13(a). The Agencies, however, contend that the authority to define what preventive care will be covered includes a congressional delegation of authority to carve out exceptions to who must provide preventive coverage. More specifically, Defendants argue that the Women's Health Amendment necessarily grants them the authority to exempt employers and healthcare plan sponsors from the coverage requirement, based on religious or moral objections to the Mandate. Thus, the precise question at issue is whether the ACA permits the Agencies to develop the exemptions set forth in the Final Rules. When the scope of the authority delegated to an agency is challenged, that challenge is generally addressed under the analytical framework prescribed by Chevron, U.S.A., Inc. v. NRDC , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). That is because, \"[n]o matter how it is framed, the question a court faces when confronted with an agency's interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority.\" City of Arlington v. FCC , 569 U.S. 290, 297, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013) (emphasis removed); see also Am. Farm Bureau Fed'n v. EPA , 792 F.3d 281, 295 (3d Cir. 2015) (applying Chevron framework to resolve \"[w]hether an [agency] interpretation falls within the scope of authority that Congress has delegated\") (internal punctuation omitted). There are two steps to the Chevron analysis. Step One asks \"whether Congress has directly spoken to the precise question at issue.\" Chevron , 467 U.S. at 842, 104 S.Ct. 2778. \"If the intent of Congress is clear, that is the end of the" }, { "docid": "1864117", "title": "", "text": "OPINION PAUL L. FRIEDMAN, United States District Judge On May 28, 2012, the Internal Revenue Service issued a final rule implementing the premium tax credit provision of the Patient Protection and Affordable Care Act (the “ACA” or “Act”). In .its final rule, the IRS interpreted the ACA as authorizing the agency to grant tax credits to certain individuals who purchase insurance on either a state-run health insurance “Exchange” or a federally-facilitated “Exchange.” Plaintiffs contend that this interpretation is contrary to the statute, which, they assert, authorizes tax credits only for individuals who purchase insurance on state-run Exchanges. Plaintiffs therefore assert that the rule promulgated by the IRS exceeds the agency’s statutory authority and is arbitrary, capricious, and contrary to law, in violation of the Administrative Procedure Act. This matter is now before the Court on the parties’ cross-motions for summary judgment. The Court heard oral argument on the motions on December 3, 2013. After careful consideration of the parties’ papers and attached exhibits, the Act and other relevant legal authorities, the regulations promulgated by the IRS, and the oral arguments presented by counsel in open court, the Court will grant the defendants’ motion, deny the plaintiffs’ motion, and enter judgment for the defendants. I. BACKGROUND A. The Affordable Care Act On March 23, 2010, Congress enacted the Patient Protection and Affordable Care Act, Pub.L. No. 111-148, 124 Stat. 119 (2010), with the aim of increasing the number of Americans covered by health insurance and decreasing the cost of health care. Nat’l Fed’n of Indep. Bus. v. Sebelius, — U.S. -, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012). Under the ACA, most Americans must either obtain “minimum essential” health insurance coverage or pay a tax penalty imposed by the Internal Revenue Service. 26 U.S.C. § 5000A; see Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. at 2580. Uninsured individuals who might otherwise have difficulty obtaining health insurance are provided certain tools to facilitate the purchase of such insurance. Specifically, the law provides for the establishment of “Exchanges,” through which individuals can purchase competitively-priced health insurance. See 42 U.S.C. §§ 18031," }, { "docid": "15340375", "title": "", "text": "decision of this court, flatly reject the position the government takes in this case. As Judge Griffith’s majority opinion— which I fully join — demonstrates, an Exchange established by the federal government cannot possibly be “an Exchange established by the State.” To hold otherwise would be to engage in distortion, not interpretation. Only further legislation could accomplish the expansion the government seeks. In the meantime, Justice Brandéis’ opinion for the Supreme Court in Iselin v. United States is controlling: “What the government asks is not a construction of a statute, but, in effect, an enlargement of it by the court, so that what was omitted, presumably by inadvertence, may be included within its scope. To supply omissions transcends the judicial function.” 270 U.S. 245, 251, 46 S.Ct. 248, 70 L.Ed. 566 (1926). We held the same in National Railroad Passenger Corp. v. United States, 431 F.3d 374, 378 (D.C.Cir.2005), citing not only Iselin but also Lamie v. United States Trustee, 540 U.S. 526, 538, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004), which reaffirmed Iselin’s “longstanding” interpretative principle. EDWARDS, Senior Circuit Judge, dissenting: This case is about Appellants’ not-so-veiled attempt to gut the Patient Protec tion and Affordable Care Act (“ACA”). The ACA requires every State to establish a health insurance “Exchange,” which “shall be a governmental agency or nonprofit entity that is established by a State.” 42 U.S.C. § 18031(b)(1), (d)(1). The Department of Health and Human Services (“HHS”) is required to establish “such Exchange” when the State elects not to create one. Id. § 18041(c)(1). Taxpayers who purchase insurance from an Exchange and whose income is between 100% and 400% of the poverty line are eligible for premium subsidies. 26 U.S.C. § 36B(a), (c)(1)(A). Appellants challenge regulations issued by the Internal Revenue Service (“IRS”) and HHS making these subsidies available in all States, including States in which HHS has established an Exchange on behalf of the State. In support of their challenge, Appellants rely on a specious argument that there is no “Exchange established by the State” in States with HHS-created Exchanges and, therefore, that taxpayers who purchase insurance" }, { "docid": "1867927", "title": "", "text": "ROVNER, Circuit Judge. The district court entered a preliminary injunction in favor of the plaintiffs, a number of religious, not-for-profit organizations, preventing the defendants from applying or enforcing the so-called “contraceptive mandate” of the Patient Protection and Affordable Care Act of 2010 (“ACA”) to the See 42 U.S.C. § 300gg-13(a)(4); Pub.L. No. 111-148, 124 Stat. 119 (2010). The plaintiffs contend that the ACA’s accommodations for religious organizations impose a substantial burden on their free exercise of religion, and that the ACA and accompanying regulations are not the least restrictive means of furthering a compelling government interest, in violation of the’ rights under the Religious Freedom Restoration Act of 1993 (“RFRA”). See 42 U.S.C. § 2000bb et seq. The defendants, several agencies of the United States government, appeal. We conclude that ACA does not impose a substantial burden on the’ free exercise rights and so we reverse and remand. However, we will maintain the injunction for a period of sixty days in order to allow the district court adequate time to address additional arguments made by the parties but not addressed prior to this appeal. I. The ACA requires group health plans and third-party administrators of self-insured plans to cover preventive care for women under guidelines supported by the Health Resources and Services Administration (“HRSA”), a component of the Department of Health and Human Services (“HHS”). 42 U.S.C. § 300gg-13(a)(4); 45 C.F.R. § 147.130(a)(l)(iv); University of Notre Dame v. Burwell, 786 F.3d 606, 607 (7th Cir.2015) (hereafter “Notre Dame II”); University of Notre Dame v. Sebelius, 743 F.3d 547, 548 (7th Cir.2014), vacated by — U.S.-, 135 S.Ct. 1528, 191 L.Ed.2d 557 (2015) (hereafter “Notre Dame /”). The relevant guidelines include “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” 77 Fed.Reg. 8725-26. The regulations adopted by the three Departments implementing this part of the ACA require coverage of, among other things, all of the contraceptive methods described in the guidelines. See 45 C.F.R. § 147.130(a)(l)(iv)(HHS); 29 C.F.R. § 2590.715-2713(a)(l)(iv) (Labor); 26 C.F.R. § 54.9815-2713(a)(l)(iv) (Treasury). In anticipation of" }, { "docid": "15878210", "title": "", "text": "Above-Store Defendants and Store-Level Defendants, all of whom are individuals. ECF No. 30-1 at 6. . 42 U.S.C. § 18001, etseq. . In his response to the Store-Level Defendants' motion to dismiss, Plaintiff states, “Count VI (ACA § 1557) was not asserted against the individual defendants.” ECF No. 30-1 at 8-9. Additionally, Plaintiff’s counsel stated at the hearing that Plaintiff has brought ¿ Section 1557 claim only against the Corporate Defendants, not against the individual Above-Store or Store-Level Defendants. Transcript at 48. . The Rumble court issued its .decision on March 16, 2015, noting, \"To the [c]ourt’s knowledge, this is the first case that requires interpretation of Section 1557.\" 2015 WL 1197415, at *9. . As discussed below, the proposed regulations for Section 1557 specify, \"An individual or-entity may bring a civil action to challenge a violation of Section 1557 or this part in a United States District Court in which the recipient or State-based Marketplace is found or transacts business.” Procedures for Health Programs and Activities Conducted by Recipients and State-based Marketplaces, 80 Fed.Reg. 173, 54220 (Sept. 9, 2015) (to be codified at 45 C.F.R. § 92.302). . HHS “is responsible for promulgating regulations pursuant to Section 1557 and the [Office, for Civil Rights (OCR) ], a sub-agency of HHS, is responsible for enforcing compliance with Section 1557.” Rumble, 2015 WL 1197415, at *10. The Administrative Procedure Act requires federal agencies such as HHS to provide notice of proposed rules and a public comment period. 5 U.S.C. § 553; see generally Int’l Union, United Mine Workers of Am. v. Mine Safety & Health Admin., 407 F.3d 1250, 1259 (D.C.Cir.2005) (observing the notice requirements of § 553 “are designed (1)to ensure that agency regulations are tested via exposure to diverse public comment, (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review”). . The notice, preamble, and proposed regulations are available online at the following web address: https://www.federalregister.goy/ articles/2015/09/08/2015-22043/nondiscri mination-in-health-programs-and-activities#h-84. . ‘‘[P]roposed regulations have" }, { "docid": "7297550", "title": "", "text": "OPINION AND ORDER SESSIONS, District Judge. Plaintiff home health agencies challenge the constitutionality of an interim reimbursement scheme for Medicare home health services in the Balanced Budget Act of 1997 (“BBA”), Pub.L. No. 105-33, § 4602, to be codified at 42 U.S.C. § 1395x(v)(1)(L). They seek a preliminary injunction against the implementation of this scheme. Plaintiffs also move to amend the complaint to join four individual plaintiffs, Medicare beneficiaries who receive home health services. Defendant opposes both motions and moves to dismiss for lack of jurisdiction and for failure to state a claim. For the reasons cited below, Plaintiffs’ Motion for Preliminary Injunction (Paper 2) is denied, Defendant’s Motion to Dismiss (Paper 18) is granted, and Plaintiffs’ Motion to Amend (Paper 24) is denied. I. Factual Background Under the Medicare program, home health agencies (“HHAs”) are paid for providing services to eligible beneficiaries. Since the late 1980’s, increased utilization of home health services and a marked leap in the number of visits per patient by HHAs have imposed a conspicuous burden on Medicare’s budget. Congress responded with the BBA on August 5, 1997, which altered the method of reimbursing HHAs. Prior to the BBA’s passage, HHAs were paid on a cost reimbursement basis. The Health Care Financing Agency (“HCFA”), the division of the Department of Health and Human Services (“HHS”) charged with administering Medicare, paid HHAs retrospectively for the reasonable costs they incurred so long as those costs fell beneath a per visit cost limit. Since 1980 Congress has placed no limit on the number of visits an HHA could make to one patient. While the cost reimbursement plan was in place, the State of Vermont developed a network of community-based nonprofit HHAs, each of which it franchised to provide services in a specific region. The network now consists of thirteen agencies, and the State has not allowed any competing HHAs to enter the marketplace. It is the mission of these HHAs to offer comprehensive home health services to all Vermonters regardless of ability to pay. Local boards govern the HHAs, which receive some funding from the communities in their" }, { "docid": "10761695", "title": "", "text": "agency within HHS. 42 U.S.C. § 300gg-13(a)(4). On August 1, 2011, after receiving recommendations from the Institute of Medicine (“IOM”), the HRSA issued its guidelines for women’s preventive health services. The guidelines include coverage of “[a]ll Food and Drug Administration [ (“FDA”) ] approved contraceptives, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” as prescribed by a health care provider. HRSA, Women’s Preventive Services Guidelines, http:// www.hrsa.gov/womensguidelines (last visited Mar. 25, 2015). In accordance with the HRSA’s guidelines, the Departments require coverage of the full range of FDA-approved contraceptive services. See 26 C.F.R. § 54.9815-2713(a)(l)(iv); 29 C.F.R. § 2590.715-2713(a)(l)(iv); 45 C.F.R. § 147.130(a)(l)(iv). Not all employers, however, are required to comply with the Mandate. First, employers with 50 or fewer employees are exempt from the Mandate because they are not required to offer insurance under the ACA. See 26 U.S.C. §§ 4980H(c)(2)(A), 4980D(d). Second, “grandfathered” plans are exempt from the Mandate because the ACA allows individuals to temporarily maintain the health coverage they possessed before the ACA was enacted. See 42 U.S.C. § 18011. Third, and the most relevant here, is the exemption for religious employers. In response to concerns from religious organizations, the Departments amended the interim final regulations to give the HRSA authority to exempt group health plans established or maintained by religious employers. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed.Reg. 46,621, 46,623 (Aug. 3, 2011). The Departments defined a “religious employer” as one that: “(1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a nonprofit organization described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” Id. The cited sections “refer to churches, their integrated auxiliaries, and conventions or associations of churches, as well as the exclusively religious activities of any religious order.” Id. The Departments noted the definition was intended “to reasonably balance the extension of any coverage" }, { "docid": "9778745", "title": "", "text": "to serve compelling governmental interests, it is fully consistent with Plaintiffs’ rights under RFRA. We also find no merit in Plaintiffs’ additional claims under the Constitution and the Administrative Procedure Act. I. Background A. The ACA & Accommodation The ACA requires group health plans, including both insured and self-insured employer-based plans, to include minimum coverage for a variety of preventive health services without imposing cost-sharing requirements on the covered beneficiary. 42 U.S.C. § 300gg-13(a); see also id. § 300gg-91(a) (defining “group health plan”); 45 C.F.R. § 147.131(c)(2)(ii) (cost-sharing includes copayments, coinsurance, and deductibles). In view of the greater preventive health care costs borne by women, the Women’s Health Amendment in the ACA specifically requires coverage for women of “such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.” 42 U.S.C. § 300gg-13(a)(4). To determine which preventive services should be required, the Health Resources and Services Administration (“HRSA”), a component of HHS, commissioned a study from the independent Institute of Medicine (“IOM” or “Institute”). The Institute is an arm of the National Academy of Sciences established in 1970 to inform health policy with available scientific information. In reliance on the work of the Institute, HRSA established guidelines for women’s preventive services that include any “[FDA] approved contraceptive methods, sterilization procedures, and patient education and counseling.” Health Resources & Servs. Admin., Women’s Preventive Services Guidelines, http://www.hrsa.gov/ womensguidelines/, quoted in 77 Fed.Reg. 8725, 8725 (Feb. 15, 2012). The three agencies responsible for the ACA’s implementation — the Department of Health and Human Services, the Department of Labor, and the Department of the Treasury (collectively, the “Departments”) — issued regulations requiring coverage of all preventive services contained in the HRSA guidelines, including contraceptive services. See 45 C.F.R. § 147.130(a)(l)(iv) (HHS); 29 C.F.R. § 2590.715-2713(a)(l)(iv) . (Labor); 26 C.F.R. § 54.9815-2713(a)(l)(iv) (Treasury). The Departments determined that contraceptives prevent unintended pregnancies and the negative health risks associated with such pregnancies; they “have medical benefits for women who are contraindicated for pregnancy,” and they offer “demonstrated preventive health benefits ... relating to conditions other than pregnancy." }, { "docid": "9080213", "title": "", "text": "offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods ... and services for adolescents).\" 42 U.S.C. § 300(a) (emphasis added). I conclude that it is not contrary to law, or arbitrary and capricious. Second , the Plaintiffs challenge the Announcement's decision to emphasize \"[p]romoting provision of comprehensive primary health care services to make it easier for individuals to receive both primary health care and family planning services preferably in the same location, or through nearby referral providers.\" 2018 FOA at 10. The Plaintiffs' chief complaint is what they consider this a preference for on-site primary care, Pls.' Opp. 28, since they already refer patients to primary care providers. See Gov. Mot. Summ. J. 36 n.26. The parties therefore dispute the import of the comma and the disjunctive \"or\" in the phrase \"in the same location, or through nearby referral providers,\" with the Plaintiffs contending that the agency will score co-located grant applicants higher than those that use referrals, and the Government contending that both options receive equal preference. The Plaintiffs also argue that stand-alone Title X providers give the most effective Title X services, but the Government says overall health benefits Title X patients, and would be advanced by primary care options. Given the agency's avowed intention to favor both on-site and referral options equally, and the Plaintiffs' admission that they have no objection to referrals, see Pls.' Opp. 28 (citing 42 C.F.R. § 59.5(b)(8) ), this issue is much ado about nothing. Funding announcements from 2007 to 2018 all sought some sort of evidence from applicants of their ability to connect clients with broader, comprehensive healthcare options. See Gov. Mot. Summ. J. 37, n. 28; 2015 FOA 9, ECF No. 25-15 (listing \"[e]vidence of the ability to provide comprehensive primary care services onsite or demonstration of formal robust linkages with comprehensive primary care providers\" as a program priority). The obvious reason for this longstanding agency commitment, as HHS explains, is the overall health of Title X patients. Gov. Mot. Summ. J. 36-37. That goal is consistent with Title X's purposes," }, { "docid": "19618145", "title": "", "text": "issue the Final Rules. Second, with specific regard to the Religious Exemption, Defendants assert that RFRA not only authorizes the Agencies to create a religious exemption to the Contraceptive Mandate, but in fact requires that the Agencies issue the broad exemption contained within the Final Religious Exemption. As explained below, both arguments fail. The Final Rules-just as the IFRs before them-exceed the scope of the Agencies' authority under the ACA, and, further, cannot be justified under RFRA. As a result, the Final Rules must be set aside. i. The ACA To reiterate for purposes of clarity, the ACA requires that group health plans and insurance issuers \"shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for--... with respect to women, such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by [HRSA].\" 42 U.S.C. § 300gg-13(a). It is uncontroverted here that, pursuant to this provision, HRSA has-and by extension the Agencies have-the delegated authority to define what \"preventive care\" is; that in 2011, HRSA issued guidelines defining \"preventive care\" to include contraceptives; and that the Final Rules do not purport to remove contraceptives from the coverage mandate. 83 Fed Reg. at 57,537. In light of these provisions, what must be provided under the ACA's \"preventive care\" requirement is clear-all FDA-approved \"contraceptive methods, sterilization procedures, and patient education and counseling,\" 77 Fed. Reg. at 8,725-as is who must provide it-any \"group health plan\" or \"health insurance issuer offering group or individual health insurance coverage,\" 42 U.S.C. § 300gg-13(a). The Agencies, however, contend that the authority to define what preventive care will be covered includes a congressional delegation of authority to carve out exceptions to who must provide preventive coverage. More specifically, Defendants argue that the Women's Health Amendment necessarily grants them the authority to exempt employers and healthcare plan sponsors from the coverage requirement, based on religious or moral objections to the Mandate. Thus, the precise question at issue is whether the ACA permits the Agencies to develop the exemptions set forth in the Final Rules. When the scope of the" }, { "docid": "3770530", "title": "", "text": "act arbitrarily and capriciously. Under arbitrary and capricious review, an agency’s decision “need not be ideal.” W.L. Harris v. United States, 19 F.3d 1090, 1096 (5th Cir.1994). So long as the agency gives at least minimal consideration to relevant factors and there was not a clear error of judgment, its decision is not arbitrary and capricious. Id. Section 604(a)(5) of the RFA requires an agency to explain why it rejected other significant alternatives. Even assuming HHS had some discretion, it was not a “clear error of judgment” for HHS to determine there were no other significant alternatives under the language of the BBA. In sum, the Court is of the opinion the Defendants did not violate the RFA. III. CONCLUSION Defendants’ Motion for Summary Judgment is GRANTED. Judgment will enter accordingly. SO ORDERED. . The consolidated action, 3:98-CV-0821-H, was voluntarily dismissed without prejudice by Order of the Court on October 14, 1998. . The Court’s June 22, 1998, Memorandum Opinion and Order provided a more detailed explanation of the relevant background information. See Greater Dallas Home Care, 10 F.Supp.2d at 641-642. A condensed version of this information is included for the reader's convenience. . Under 42 U.S.C. § 1395ff(a), HCFA is authorized to promulgate regulations concerning reimbursement limits and the determination of covered claims. . Under the PPS, Medicare providers receive predetermined payments which are intended to account for each patient’s unique medical needs. . While the per visit cost limits used to be calculated at 112 percent of the mean of the labor-related and non-labor per-visit costs for freestanding home health agencies, the IPS lowered the limit to 105 percent of the median of'such costs. 42 U.S.C. § 1395(x)(v)(l)(L)(I)(IV). . An HHA which had a full cost reporting period ending during the 1994 fiscal year is to receive reimbursements calculated according to per-beneficiary cost limits based 75 percent on 98 percent of the reasonable allowable costs for the individual HHA's 12-month cost reporting period ending during fiscal year 1994 and based 25 percent on 98 percent of the standardized regional average of such costs for the HHA’s census division," }, { "docid": "22155934", "title": "", "text": "must identify the telephone number of the appropriate child protective services agency and, in addition, a toll-free number for the Department that is available 24 hours a day. Ibid. Finally, the notice must state that the “identity of callers will be kept confidential” and that federal law prohibits retaliation “against any person who provides information about possible violations.” Ibid. Subsection (c), which contains the second mandatory requirement, sets forth “Responsibilities of recipient state child protective services agencies.” Subsection (c) does not mention § 504 (or any other federal statute) and does not even use the word “discriminate.” It requires every designated agency to establish and maintain procedures to ensure that “the agency utilizes its full authority pursuant to state law to prevent instances of unlawful medical neglect of handicapped infants.” 45 CFR § 84.55(c)(1). Mandated procedures must include (1) “[a] requirement thát health care providers report on a timely basis . . . known or suspected instances of unlawful medical neglect of handicapped infants,” §84.55(c)(l)(i); (2) a method by which the state agency can receive timely reports of such cases, § 84.55(c)(1)(h); (3) “immediate” review of those reports, including “on-site investigation,” where appropriate, §84.55(c)(l)(iii); (4) protection of “medically neglected handicapped infants” including, where appropriate, legal action to secure “timely court order[s] to compel the provision of necessary nourishment and medical treatment,” §84.55(c)(l)(iv); and (5) “[tjimely notification” to HHS of every report of “suspected unlawful medical neglect” of handicapped infants. The preamble to the Final Rules makes clear that this subsection applies “where a refusal to provide medically beneficial treatment is a result, not of decisions by a health care provider, but of decisions by parents.” 49 Fed. Reg. 1627 (1984). The two remaining mandatory regulations authorize “[expedited access to records” and “[expedited action to effect compliance.” 45 CFR §§ 84.55(d), (e) (1985). Subsection (d) provides broadly for immediate access to patient records on a 24-hour basis, with or without parental consent, “when, in the judgment of the responsible Department official, immediate access is necessary to protect the life or health of a handicapped individual.” § 84.55(d). Subsection (e) likewise dispenses" }, { "docid": "13182656", "title": "", "text": "Northwest Indian Cemetery by deciding, as a question of law, whether the challenged law pressures the objector to modify his religious exercise. The other circuits’ decisions confirm the continued vitality of that approach. B. Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives. Instead, the acts that violate their faith are those of third parties. Because RFRA confers no right to challenge the independent conduct of third parties, we join our sister circuits in concluding that the plaintiffs have not shown a substantial burden on their religious exercise. First, the plaintiffs claim that their completion of Form 700 or submission of a notice to HHS will authorize or trigger payments for contraceptives. Not so. The ACA already requires contraceptive coverage: “A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for ... with respect to women, such additional preventive care ... as provided for in comprehensive guidelines” promulgated by HHS, 42 U.S.C. § 300gg-13(a)(4), which includes contraceptives.- That provision expressly requires insurers to offer coverage. And although it does not specifically mention third-party administrators, they administer “group health plan[s],” which must include coverage. Nothing suggests the insurers’ or third-party administrators’ obligations would be waived if the plaintiffs refused to apply for the accommodation. Accordingly, the plaintiffs’ completion of Form 700 or submission of a notice to HHS does not authorize or trigger payments for contraceptives, because the plaintiffs cannot authorize or trigger what others are already required by law to do. The plaintiffs offer two variations of that theory, but those are equally unconvincing. The plaintiffs assert that their listing the names and contact information of their insurers and third-party administrators will make it easier for the government to inform those entities of their obligations. It will, but that does not mean the plaintiffs’ religious exercise is burdened. Without the accommodation, the plaintiffs would have to offer a plan that covered contraceptives, so the effect of the government’s communications" }, { "docid": "20616123", "title": "", "text": "POOLER, Circuit Judge: Defendants-Appellants, the Secretaries of Health and Human Services, Labor, and the Treasury, appeal from the December 16, 2013 order of the United States District Court for the Eastern District of New York (Cogan, J.) which, in relevant part, granted Plaintiffs-Appel-lees’ motion for summary judgment and denied Defendants-Appellants’ cross-motion for summary judgment. The district court concluded -that regulations promulgated under the Patient Protection and Affordable Care Act that allow religious non-profit employers to opt out of providing contraceptive coverage themselves violate these religious employers’ rights under the Religious Freedom Restoration Act. We reverse, concluding that the challenged accommodation for religious objectors relieves, rather than imposes, any substantial burden on Plaintiffs’ religious exercise, and thus does not violate the Religious Freedom Restoration Act. BACKGROUND I. Statutory and Regulatory Background This ease concerns regulations promulgated under the Patient Protection and Affordable Care Act of 2010 (the “ACA”), Pub.L. No. 111-148, 124 Stat. 119. The ACA generally requires employers with fifty or more full-time employees to offer “a group health plan or group health insurance coverage” that provides “minimum essential coverage.” 26 U.S.C. § 5000A(f)(2); id. § 4980H(a)(l), (c)(2). Unless an exception applies, as part of this minimal essential coverage, the ACA requires an employer’s group health plan or group health insurance coverage to furnish “preventive care and screenings” for female employees without “any cost sharing requirements.” 42 U.S.C. § 300gg-13(a)(4). Without “cost sharing requirements” means without requiring plan participants and beneficiaries to make copay-ments or pay deductibles or coinsurance. See 45 C.F.R. § 147.131(c)(2)(ii). An employer whose health plan does not include the required coverage is subject to penalties of $100 per day, per affected beneficiary. 26 U.S.C. § 4980D(b). An employer who drops employee health care coverage altogether is generally subject to a penalty of $2000 per year, per employee, after the first thirty employees. Id. § 4980H(a), (c)(1), (c)(2)(D)®. The ACA does not specify what types of preventive care must be covered for female plan participants and beneficiaries. Instead, Congress left that issue to be determined via regulation by the Health Resources and Services Administration (“HRSA”), a division" }, { "docid": "2547869", "title": "", "text": "MEMORANDUM AND ORDER FULLAM, District Judge. On March 15, 1979, the Secretary of the Department of Health, Education and Welfare — subsequently rechristened the Department of Health and Human Services (HHS) — issued a proposed rule that altered one aspect of the method by which hospitals are reimbursed for their participation in Medicare, the federally funded health insurance program for the aged and disabled. 44 Fed.Reg. 15744. Under Title XVIII of the Social Security Act (the Medicare Act), 42 U.S.C.A. §§ 1395-1395pp (1974 & West Supp.1983), HHS contracts with health-care providers to render medical services to eligible individuals. Providers are entitled to be reimbursed for all “reasonable costs” of providing such services. Id. § 1395f. The “Malpractice Rule,” which was promulgated in final form on June 1, 1979, revised the formula for calculating the portion of hospitals’ malpractice insurance costs attributable to Medicare patients and thus reimbursable by the Medicare program. 44 Fed.Reg. 31641, codified at 42 C.F.R. § 405.452(b)(l)(ii). The new rule significantly reduces the reimbursement made to most hospitals, and has generated virtually unanimous opposition from the nation’s hospitals. Plaintiffs here are non-profit health-care facilities, including acute-care hospitals, hospital-based skilled nursing facilities, and hospital-based home-health agencies. Plaintiffs challenge the rule on three separate grounds: (1) that the Secretary failed to comply with the notice and comment requirements of the Administrative Procedure Act (APA), 5 U.S.C. § 553, which governs informal rulemaking; (2) that the Malpractice Rule is arbitrary and capricious and thus violates § 706(2)(A) of the APA;, and (3) that the rule is substantively invalid under the Medicare Act because it fails to reimburse hospitals for reasonable costs incurred in providing services to Medicare patients. I. Until the Malpractice Rule went into effect in July 1979, malpractice insurance costs — which may take the form of premiums paid to an insurer or payments to a self-insurance fund — were included in the “General and Administrative” category (G & A) of hospital expenses, along with other insurance costs, administrative salaries, and so forth. To apportion G & A costs between Medicare and non-Medicare patients, the G & A" }, { "docid": "21700648", "title": "", "text": "MEMORANDUM OPINION CHRISTOPHER R. COOPER, United States District Judge This case requires the Court to interpret what it means to “document” that a meeting took place.. Seeking to-curb fraudulent Medicare claims, Congress included a provision in the Patient Protection and Affordable Care Act (“ACA”) that modified the requirements for Medicare reimbursement for services rendered to homebound patients. Whereas previously, physicians needed only to certify that a patient required home-health services, the new law requires them also to “document” that they have had a “face-to-face encounter” with the patient within a reasonable time-frame. • Pursuant to this statutory provision, the Department of Health and Human Services,(“HHS”) issued a regulation requiring physicians to document that the face-to-face encounter occurred by, among other things, providing an explanation of why the clinical findings made during the encounter support a determination that the patient is, homebound and in need of home-health services. This regulation has become known as the “narrative requirement.” An insufficient explanation results in a denial of Medicare reimbursement. Plaintiff National Association for Home Care & Hospice, Inc. (“NAHC”) — a trade association that represents some 6,000 home-health agencies — has challenged the narrative requirement under the Administrative Procedure Act (“APA”). NAHC maintains that the rule exceeds the scope of its authorizing provision in the ACA by requiring doctors to do more than simply attest to the fact that a meeting took place within a certain timeframe. Invoking the familiar Chevron framework; HHS counters that the meaning of the verb “document” is broad enough to encompass a requirement to “explain,” based on findings made at a face-to-face encounter, why the patient qualifies for home-health services, and that its interpretation of the statutory provision is reasonable given Congress’s goal .of reducing fraud and HHS’s expansive, authority to administer Medicare programs. HHS also highlights two alternative statutory provisions that purportedly authorize the narrative requirement. The Court concludes that HHS’s reading of the statute — although not the most natural one — is not foreclosed by its authorizing provision and that it is otherwise reasonable. A mandate to documént that a face-to-face encounter has occurred most" }, { "docid": "16784183", "title": "", "text": "and economically' operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards ... 42 U.S.C. § 1396a(a)(13)(A) (1981). The plaintiff argues strenuously that capital costs for anticipated construction must be reimbursable in order for a state plan to meet the statutory standard. Both HHS and DPW respond that a reviewing court must defer to HHS’s expertise in reimbursement of health care facilities. DPW argues that the regulations have a rational basis in the statutory language and purpose, and HHS argues that its approval of the regulations is consistent with the reduced federal oversight and greater state flexibility required by the Boren Amendment. Second, Wilmac asserts that the district court misunderstood the legal basis for its claim that the moratorium should be declared invalid as violative of the NHPRDA. The district court interpreted Wilmac’s argument to be that the issuance of the CON by the DOH a fortiori makes the construction expense one which “must be incurred.” See 42 U.S.C. § 1396a(a)(13)(A). The plaintiff claims on appeal that the import of its argument was and is that DPW in amending its regulations, violated the NHRPDA by arrogating to itself functions which are properly reserved to DOH as the “sole agency” designated in accordance with the NHPRDA to determine statewide health care needs. See 42 U.S.C. § 300m-2. Both HHS and DPW argue that Wilmac has failed to allege any violation of the NHPRDA. DPW argues that the NHPRDA does not give a Medicaid provider a right to challenge Medicaid reimbursement polices. HHS argues that the issuance of a CON does not mean that the state must fund the construction through Medicaid or otherwise. Third, the plaintiff challenges the district court’s refusal to reach the merits of Wilmac’s claim of injury. The court did find that Wilmac had standing to assert claims under the Medicaid statute on behalf of itself as well as on behalf of its Medicaid patients. Nevertheless, the court found that Wilmac had alleged no present injury because Wilmac did not rely on the availability of" }, { "docid": "19618092", "title": "", "text": "Contraceptive Mandate In March 2010, Congress enacted the Affordable Care Act. See Patient Protection and Affordable Care Act (\"ACA\"), Pub L. No. 111-148, 124 Stat. 119 (2010). A provision of the ACA, the Women's Health Amendment, mandated that insurance providers cover preventive health services and screenings for women without cost-sharing responsibilities. Specifically, the Women's Health Amendment requires that \"[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements ... with respect to women, such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [\"HRSA\"] for purpose of this paragraph.\" 42 U.S.C. § 300gg-13(a)(4). This requirement applies to all health insurers offering individual or group insurance, as well as all group health plans, with an exception for certain \"grandfathered\" plans. 42 U.S.C. § 18011 (exempting \"grandfathered\" plans); see also 29 C.F.R. § 2590.715-1251 (2010). Rather than enumerate the preventive services to be covered by the mandate, Congress delegated that decision to HRSA, which is an agency of Defendant Department of Health and Human Services (\"HHS\"). HRSA, in turn, commissioned the then-named Institute of Medicine (\"the Institute\"), to convene a panel of experts to provide recommendations. On July 19, 2011, the Institute issued its report, recommending that the ACA cover \"the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.\" Institute of Medicine, Clinical Prevention Services for Women: Closing the Gaps , at 109-10 (2011). On August 1, 2011, HRSA issued its preventive care guidelines (\"2011 Guidelines\"), which adopted the Institute's recommendations. See HRSA, Women's Preventive Services Guidelines , available at https://www.hrsa.gov/womens-guidelines/index.html. The 2011 Guidelines hewed to the Institute's report, defining preventive care to include all FDA-approved \"contraceptive methods, sterilization procedures, and patient education and counseling.\" Id. Under the Women's Health Amendment, \"non-grandfathered group health plans and health insurance issuers are required to provide coverage consistent with the HRSA Guidelines, without cost sharing.\" Group Health Plans and Health" }, { "docid": "18287871", "title": "", "text": "challenges the Contraceptive Mandate and the criteria for the exemption as not only arbitrary and capricious under the Administrative Procedures Act but also contrary to federal law. The other appellants, three employees of Real Alternatives, bring individual challenges to the Contraceptive Mandate. They argue that the Contraceptive Mandate violates the Church Amendment, 42 U.S.C. § 300a-7(d). They also argue that maintaining a health insurance plan that covers contraceptives through their employer violates their religious rights under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb to 2000bb-4 (“RFRA”). The District Court denied Appellants’ motion for summary judgment in its entirety and granted the Government’s cross-motion for summary judgment in its entirety. Because we agree with the District Court’s rulings on all of the issues raised, we will affirm. I. BACKGROUND A. Statutory and Regulatory Framework 1. The Affordable Care Act and the Contraceptive Mandate In 2010, Congress passed the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (collectively, the “ACA”). The ACA requires non-grandfathered group health plans and insurance providers to cover four categories of preventative health services; without cost-sharing, as provided for in guidelines supported by the Health Resources and Services Administration (“HRSA”), an arm of the Department of Health and Human Services (“HHS”). One of these four categories is “preventative care and screenings” for women. HHS requested assistance from the Institute of Medicine (“IOM”), a non-profit division of the National Academy of Sciences, to develop guidelines on the specific preventative services for women to be covered under the ACA (none existed at the time the ACA was passed). The IOM recommended that HRSA endorse a list of services that included “[FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Institute of Medicine, Clinical Preventative Services for Women: Closing the Gaps 10 (2011). Examples of FDA-approved contraceptive methods are diaphragms, oral contraceptives, intrauterine devices, and emergency contraceptives. Id. at 105-06. HRSA adopted the IOM’s guidelines in full. Health" } ]

[ { "docid": "22546024", "title": "", "text": "to aliens before the April 1, 1997, effective date of §1252 continues to be available even after the effective date to aliens who were already in proceedings before the effective date. In other words, the terms of § 309(c)(1)(B) preserve pre-existing judicial review for the self-same class of aliens to whom § 306(c)(1) bars review. We do not have to dwell on how this contradiction arose. What matters for our purposes is that §§ 306(c)(1) and 309(e)(1) cannot be reconciled. Either aliens in proceedings on April 1, 1997, have no access to judicial review or else they have the access available under the law that applied before § 1252 came into effect. The Court acknowledges the existence of an “interpretive anomaly,” ante, at 478, and attempts to avoid the contradiction by a creative interpretation of § 1252(g). It reads the § 1252(g) bar to review of “the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien” to “appl[y] only to three discrete actions that the Attorney General may take.” Ante, at 482. The Court claims that a bar to review of commencement of proceedings, adjudication of cases, and execution of removal orders does not bar review of every sort of claim, because “many other decisions or actions that may be part of the deportation process,” ibid., remain unaffected by the limitation of § 1252(g). On this reading, the Court says, review of some aspects of the Attorney General’s possible actions regarding aliens in proceedings before April 1,1997, is preserved, even though the rest of § 1252 does not apply. The actions that still may be reviewed when challenged by aliens already in proceedings before the effective date of IIRIRA include, the Court tells us, “decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order.” Ibid. The Court’s interpretation, it seems to me, parses the language of subsection (g) too finely for the business" } ]

[ { "docid": "20853799", "title": "", "text": "execute removal orders against any alien under this Act. That provision could be read as a broad jurisdiction-stripping enactment, depriving courts of judicial review powers in all deportation matters, unless § 1252 otherwise provides for such review. But this “zipper” clause approach was rejected in the seminal case of Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), where the Supreme Court held that the provision’s reach is “much narrower.” Id. at 482, 119 S.Ct. 936. The limitations on judicial review of an Attorney General’s decision or action to “commence proceedings, adjudicate cases, or execute removal orders” only barred district courts from reviewing those three categories; the statute did not protect all deportation decisions from district-court review. Id. As support for its reading that the language was not intended to cover the waterfront of all deportation decisions, the Court claimed that there was good reason for Congress to focus on these three areas: “At each stage, the Executive has discretion to abandon the endeavor, and at the time IIRIRA was enacted the INS had been engaging in a regular practice (which had come to be known as ‘deferred action’) of exercising that discretion for humanitarian reasons or simply for its own convenience.” Id. at 484, 119 S.Ct. 936. Because litigation had proliferated against the Attorney General, Congress stepped in, via § 1252(g), “to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations!;.:]” Id. at 485, 119 S.Ct. 936. In 2005, the REAL ID Act was signed into law. The act, among other things, amended 8 U.S.C. § 1252, by adding language that -expressly stated that habeas jurisdiction was withdrawn for any claims excluded by § 1252(g). The amended language — which is the current language at issue in our case — states: Except , as provided in this section, and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or" }, { "docid": "23614401", "title": "", "text": "from review by any court decisions of the Attorney General on all deportation-related cases including final orders of deportation. Such a statutory scheme would likely raise substantial constitutional problems. Fortunately, recent Supreme Court authority has clarified both of these issues. In Reno v. American-Arab Anti-Discrimination Committee, the Supreme Court deciphered this apparent conflict and helped us avoid constitutional problems by construing § 1252(g) narrowly. 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (“AADC II ”). Although AADC II did not directly present the question of whether § 1252(g) precludes judicial review of habeas corpus petitions in district court, as we noted in Selgeka, the Court “rejected the notion that section 1252(g) ‘covers the universe of deportation claims.’ ” Selgeka, 184 F.3d at 341 (quoting AADC II, 525 U.S. at -, 119 S.Ct. at 943). The Court concluded instead that § 1252(g) applies only to the “three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’ ” AADC II, 525 U.S. at -, 119 S.Ct. at 943. The Supreme Court reasoned that § 1252(g) does not apply to “all claims arising from deportation proceedings,” id., because § 1252(g) stripped the federal courts of jurisdiction only to review challenges to the Attorney General’s decision to exercise her discretion to initiate or prosecute these specific stages in the deportation process. See id.; see also Selgeka, 184 F.3d at 341-42; Shah, 184 F.3d at 722. We read the Court’s AADC II ruling, therefore, to hold that § 1252(g) does not apply to agency interpretations of statutes as these decisions do not fall into any of the three categories enumerated in § 1252(g). Accord Shah, 184 F.3d at 722. District court jurisdiction over habeas corpus petitions, like Bowrin’s, therefore, is not prohibited by § 1252(g) because it is inapplicable to final deportation orders. If § 1252(g) does not govern our review of Bowrin’s § 2241 habeas petition, then what does? The transitional rules of the IIRIRA, specifically § 309(c)(4)(G). As previously stated, because he was already involved in deportation proceedings when" }, { "docid": "4119992", "title": "", "text": "possess prosecutorial discretion and the members of the Board are not among those listed. Memorandum, at 3. Second, exercises of prosecutorial discretion by the DHS generally are immune from judicial review. See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482-92, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). See also 8 U.S.C. § 1252(g) (“Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory) ... no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.”). As the Supreme Court noted: There was good reason for Congress to focus special attention upon, and make special provision for, judicial review of the Attorney General’s discrete acts of “commenc[ing] proceedings, adjudicating] cases, [and] executing] removal orders” — which represent the initiation or prosecution of various stages in the deportation process. At each stage the Executive has discretion to abandon the endeavor, and at the time IIRIRA was enacted the INS had been engaging in a regular practice (which had come to be known as “deferred action”) of exercising that discretion for humanitarian reasons or simply for its own convenience. American-Arab Anti-Discrimination Committee, 525 U.S. at 483-84, 119 S.Ct. 936. Whether to exercise the prosecutorial discretion outlined in the Memorandum plainly comes within the purview of section 1252(g) and the Supreme Court’s decision in the American-Arab Anti-Discrimination Committee case. We therefore lack jurisdiction to review this claim. B. The USCIS found that Ko stopped attending school on November 6, 2005, and that she failed to inform the DSO why she stopped attending classes. Ko claimed that she stopped coming to class because of a serious illness but the USCIS rejected this explanation because a letter from her doctor demonstrated that she was under his care from December 17, 2005 through January 13, 2006, a period that began approximately five weeks after Ko stopped attending classes. The IJ found that Ko’s non-immigrant student status was terminated" }, { "docid": "20853802", "title": "", "text": "the Attorney General to ...' execute removal orders against any alien[.]” Petitioners’ sole recourse, according to the Government, is for Petitioners to seek relief in the form of a motion to reopen proceedings with the immigration courts and judicial review in the appropriate court of appeals. Gov. Resp, at 1 (Dkt. 17). Petitioners respond by arguing that § 1252(g) does not preclude judicial review of all actions by the Attorney General coming within the three headings of commencing proceedings, adjudicating cases, or enforcing removal orders. Rather, only discretionary decisions within those types of matters are excluded from' a district court’s jurisdiction. They argue that because the Attorney General has no discretion to remove them in violation of the CAT and the INA, his decision to do so is reviewable by this Court. In support of this argument, Petitioners rely on Reno and its many references to the fact that § 1252(g) was designed to protect discretionary decision's of the Attorney General. See, e.g., Reno, 525 U.S. at 485 n.9, 119 S.Ct. 936 (Section 1252(g) “was directed against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion.”). The problems with Petitioners’ theory are manifold, starting with Reno. It is true that Reno notes that § 1252(g) was designed to protect certain discretionary decisions. But the opinion did not say .that only discretionary decisions were protected. In fact, the allegation in Reno was that the. Attorney General had violated the First Amendment by supposedly seeking to deport the petitioner because he was a member of a politically unpopular organization. That raised a non-discretionary issue — a claimed constitutional violation— much like the CAT and the INA violations Petitioners allege in the instant case. Nonetheless, the Supreme Court held that the district court lacked jurisdiction to consider the claim because the challenge was 'to the Attorney General’s decision to “commence proceedings” — a challenge that “falls squarely within [§ ] 1252(g) — indeed ... the language seems to have been craft ed with such a challenge precisely in mind[.]” Id. at 487, 119 S.Ct. 936. Other courts have rejected the .view" }, { "docid": "9828190", "title": "", "text": "propriety of our jurisdiction to hear Rosales’s claim. In AADC, the Supreme Court addressed the scope of 8 U.S.C. § 1252(g) and its ostensibly sweeping jurisdiction-stripping language. Forced to reconcile the incongruity of several provisions of the IIRIRA which simultaneously grant and deny the right of judicial review to certain aliens who were in deportation proceedings before April 1, 1997, the Supreme Court determined that § 1252(g) must have a “narrow! ]” meaning. See AADC, 525 U.S. at 482, 119 S.Ct. 936. Rejecting the idea that § 1252(g) “covers the universe of deportation claims — that it is a sort of ‘zipper’ clause that says ‘no judicial review in deportation eases unless this section provides judicial review,’ ” the Supreme Court restricted § 1252(g) to three discrete actions that the Attorney General may take: the decision to “commence proceedings, adjudicate cases, or execute removal orders.” Id. The Court noted that “[tjhere are of course many other decisions or actions that may be part of the deportation process....” Id. In Zhislin v. Reno, 195 F.3d 810 (6th Cir.1999), we applied the Supreme Court’s reasoning in AADC and concluded that § 1252(g) did not preclude our review of an alien’s petition for habeas corpus challenging the INS’s authority to detain him indefinitely. See Zhislin, 195 F.3d at 814. Like Zhislin, Rosales does not seek to review the Attorney General’s decision to commence or adjudicate a case, nor does he dispute the removal order entered against him. Instead, Rosales challenges “the right of the Attorney General to detain him indefinitely when it appears that circumstances beyond anyone’s control will prevent the deportation order from ever being executed.” Id. Such a challenge is clearly outside the purview of § 1252(g) and we may therefore consider the claim. See Zhislin, 195 F.3d at 814; Carrera-Valdez v. Perryman, 211 F.3d 1046, 1047 (7th Cir.2000) (upholding district court’s jurisdiction over Mariel Cuban’s petition for release from indefinite detention); Ho v. Greene, 204 F.3d 1045, 1051 (10th Cir.2000); Ma v. Reno, 208 F.3d 815, 818 n. 3 (9th Cir.2000), cert. granted, — U.S. -, 121 S.Ct. 297, 148" }, { "docid": "6713129", "title": "", "text": "relevant part, “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” 8 U.S.C. § 1252(g). The Supreme Court in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), held that § 1252(g) applies narrowly to the Attorney General’s decision to “commence proceedings, adjudicate cases, or execute removal orders.” Id. at 482, 119 S.Ct. 936. The Court stated that “[i]t is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings.” Id. Thus, it is even less plausible that the mention of these discrete deportation-related events was a shorthand way of referring to all claims brought in immigration matters. See Paunescu v. INS, 76 F.Supp.2d 896, 899 (N.D.Ill.1999). Because this case does not involve any of the explicitly mentioned steps in the deportation process, or any aspect of the deportation process at all, § 1252(g) does not apply to plaintiffs claim. See Reno, 525 U.S. at 482, 119 S.Ct. 936; Paunescu, 76 F.Supp.2d at 899. C. 28 U.S.C. § 1331 and the APA Under the APA, “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. An agency has a duty to conclude a matter presented to it within a “reasonable time.” Id. § 555(b). Accordingly, the scope of judicial review includes “compelling] agency action unlawfully withheld or unreasonably delayed.” Id. § 706(1); see also Brock v. Pierce County, 476 U.S. 253, 260 n. 7, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986) (noting that the APA gives district courts the authority to “compel agency action unlawfully withheld or unreasonably delayed”) (citing 5 U.S.C. § 706(1)). The APA does not independently provide a basis for the existence of subject matter jurisdiction. Califano v. Sanders, 430 U.S." }, { "docid": "17114864", "title": "", "text": "for reasonable cause and upon appropriate notice” must therefore be the baseline from which all subsequent actions in this case (whether taken by the INS or Boguslaw) shall begin. B. The only conceivable fly in this ointment comes from 8 U.S.C. § 1252(g), the statute on which the district court relied, which forecloses challenges to certain decisions and actions of the Attorney General. This is the principal argument the INS has made in its effort to defend the Chicago District Director’s decision. The statute, which was adopted by Congress as part of the IIRIRA’s general curtailing of judicial review in immigration cases, reads: “Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” Perhaps this language could have been construed as the INS urges, to preclude jurisdiction merely because Bogus-law is raising a grievance around the same time that the INS is planning to execute a removal order. The Supreme Court, however, has instructed otherwise. In Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), the Court held that § 1252(g) restricts the district courts’ power only in the three circumstances discussed in the text: when the alien challenges discretionary actions taken by the Attorney General to (1) commence proceedings, (2) adjudicate cases, and (3) execute removal orders. AADC, 525 U.S. at 482, 119 S.Ct. 936. See also Bhatt v. Reno, 204 F.3d 744, 747 (7th Cir.2000). This court has held that § 1252(g) precludes jurisdiction even in habeas cases such as this one, but (perhaps obviously) only where the statute is applicable — ie. the three areas that the Supreme Court noted in AADC. See Singh v. Reno, 182 F.3d 504, 508-09 (7th Cir.1999) (holding § 1252(g) applicable to habeas claim that challenged INS deportation decision). This case does not fall into any of those categories." }, { "docid": "1900250", "title": "", "text": "argues that pursuant to INA § 242(g), 8 U.S.C. § 1252(g), this Court lacks jurisdiction to entertain this action. Section 242(g) provides, “Except as provided in this section ... no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate eases, or execute removal orders against any alien under this Act.” 8 U.S.C. § 1252(g). The government argues that this section applies to bar jurisdiction here because Garcia is raising the five-year limit to challenge the decision to “commence” removal proceedings. In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), the Supreme Court rejected “the unexamined assumption that § 1252(g) covers the universe of deportation claims — that it is a sort of ‘zipper’ clause that says ‘no judicial review in deportation cases unless this section provides judicial review.’ ” Id. at 482, 119 S.Ct. 936. The Court held that section 1252(g) “applies only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’ ” Id.; see also id. at 483, 119 S.Ct. 936 (Section 1252(g) “performs the function of categorically excluding from non-final-order judicial review ... certain specified decisions and actions of the INS.” (Emphasis added)). Despite its apparent broad reach, therefore, § 242(g) “is to be read narrowly and precisely” to prevent review only of the three narrow discretionary decisions or actions referred to in the statute. Sabhari v. Reno, 197 F.3d 938, 942 (8th Cir.1999); see also Fornalik v. Perryman, 223 F.3d 523, 531 (7th Cir.2000). Thus, the section “has nothing to do with petitions for review of final orders of deportation, or indeed with any sort of review of such orders.” Shah v. Reno, 184 F.3d 719, 722 (8th Cir.1999). Garcia is not challenging the discretionary decision to commence proceedings, but is challenging the government’s very authority to commence those proceedings after the limitation period has expired. Thus, § 242(g) is not implicated, and we" }, { "docid": "22920608", "title": "", "text": "IJ also correctly held that Rodriguez is inadmissible and, therefore, ineligible for adjustment of status. Under 8 U.S.C. § 1255, an alien is eligible for adjustment of his status to that of permanent resident if, inter alia, he or she “is admissible to the United States for permanent residence.” 8 U.S.C. § 1255(a) (emphasis added). An alien is not “admissible” if he “has falsely represented, himself ... to be a citizen of the United States for any purpose or benefit under this chapter ... or any other Federal or State law.” 8 U.S.C. § 1182(a)(6)(C)(ii)(I). Rodriguez argues that although he represented himself to be a United States citizen, he did not do so falsely because he honestly believed that his old passport and birth certificate were valid because he had become a citizen. As with his argument for cancellation of removal, the fact that Rodriguez has pled guilty to a violation of section 1542 precludes him from claiming that he did not knowingly submit false information to obtain a passport. See Pichardo v. INS, 216 F.3d 1198, 1201 (9th Cir.2000) (holding that pleading guilty to making a false claim of United States citizenship in violation of 18 U.S.C. § 911 for using a false birth certificate when trying to enter the United States constituted an independent and non-waivable ground for inadmissibility under section 1182(a)(6)(C)(ii)). Because Rodriguez admitted that he represented himself to be a United States citizen and, by pleading guilty, that he knew his application contained false information, he is inadmissible and statutorily precluded from receiving adjustment of status. Finally, as noted by the IJ, Rodriguez’s claim that he honestly believed he had become an American citizen is belied by the facts. He could not have reasonably believed that the birth certificate stating that he had been born in New York City was valid, considering that he emigrated from the Dominican Republic when he was approximately 19 years old. CONCLUSION For the foregoing reasons, the petition for review is Denied. The pending motion for a stay of deportation is Denied as moot." }, { "docid": "7282103", "title": "", "text": "1038-40 (7th Cir.1998). This is true even if, as in Gomez-Chavez’s case, there was never a hearing before an immigration judge or the district court. Id. Thus, Gomez-Chavez was entitled to petition this court for review of the July 19 order reinstating the order of removal. We think that the best way to remedy this problem is to recall the mandate in No. 01-3068, and re-open that petition. With respect to the present appeal, No. 01-3454, we affirm the district court’s judgment. Ill Although these steps bring the merits of Gomez-Chavez’s petition for review before us, we conclude that nothing he has presented entitles him to relief from the INS’s order. Gomez-Chavez’s primary claim is that the INS is now improperly refusing to adjudicate his 1-212 application for waiver of inadmissibility. But this argument fits squarely within the steps covered by the prohibition on judicial review found in 8 U.S.C. § 1252(g). Under § 1252(g), courts are barred from reviewing discretionary decisions to “commence proceedings, adjudicate cases, or execute removal orders.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999); Chapinski v. Ziglar, 278 F.3d 718, 721 (7th Cir.2002); Singh v. Reno, 182 F.3d 504, 508-09 (7th Cir.1999). These strict limitations apply not only to the Attorney General’s positive actions, but also to his refusals to take action. Alvidres-Reyes v. Reno, 180 F.3d 199, 205 (5th Cir.1999). An alien attempting to achieve judicial review of such discretionary measures may not avoid the § 1252(g) bar by the simple expedient of recharac-terizing a claim as one challenging a refusal to act. Cardoso v. Reno, 216 F.3d 512, 516 (5th Cir.2000). Although § 1252(g) bars Gomez-Chavez from obtaining an order commanding the INS to adjust his status or precluding his removal, this does not mean that the courts have ceased to exist for cases in which a true miscarriage of justice may be occurring. LaGuerre v. Reno, 164 F.3d at 1040. For example, the Supreme Court held in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), that the district" }, { "docid": "15996410", "title": "", "text": "states that \"[e]xcept as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.” 8 U.S.C. § 1252(g) (1999). In Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 487, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), the Supreme Court explained that § 1252(g)’s jurisdictional bar applies only to a limited subset of deportation claims by precluding judicial review of the Attorney General's discrete acts of \"commencing] proceedings, adjudicating] cases, [and] executing] removal orders.” Id. at 482, 119 S.Ct. at 943. Construing § 1252(g) narrowly, the Court reasoned that subsection (g) “performs the function of categorically excluding from non-final-order judicial review — even as to transitional cases otherwise governed by § 1105a ... — certain specified decisions and actions of the INS.” Id. at 483, 119 S.Ct. at 943 (emphasis added). Because the Al Najjars are transitional aliens petitioning the court of appeals for judicial review of the BIA's final orders of deportation, § 1252(g) does not alter our review. . This old rule was repealed by IIRIRA but is applicable to transitional aliens through incorporation. See IIRIRA §§ 309(c)(1) and (4). . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. . The court deemed Fisher’s rule so pervasive that it overruled all prior inconsistent decisions, explaining that \"[t]o the extent our prior decisions may be interpreted as authorizing us to take judicial notice of information not part of the administrative record or not previously submitted to the Board, they are overruled as inconsistent with the Act and prior precedent.” Id. at 963. . In the asylum context, Congress permits the Attorney General to consider changed cir cumstances that materially affect an applicant's petition." }, { "docid": "22200990", "title": "", "text": "be consistent with a lifetime of normal activity accompanied by everyday cuts and bruises or athletic injuries.” In addition, the doctor's submission characterized her as a specialist in Bariatric medicine — a specialist in treating obesity — and did not include support for her claim to have been trained in the treatment of torture victims. . Further evidence that the relevant subchapr ter does not itself confer discretion upon the Attorney General is provided by a regulation implementing § 1229a, which specifically addresses an IT's authority to grant continuances during immigration proceedings. See 8 C.F.R. § 1003.29 (\"The Immigration Judge may grant a motion for continuance for good cause shown.”) (emphasis added). The regulation's conferral of discretion suggests that such authority is not \"specified” under the \"subchapter” of the INA pursuant to which the regulation was promulgated. . Another jurisdiction-denying provision potentially applicable here is 8 U.S.C. § 1252(g), which provides, in relevant part that no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. Pursuant to this provision, the decision of an IJ, as the designee of the Attorney General, to \"adjudicate cases” is beyond our review. Although it might be argued that the decision to grant or to deny a continuance is tantamount to a non-reviewable decision to \"adjudicate” a case, the Supreme Court's construction of this provision in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), makes clear that § 1252(g) does not encompass decisions relating to grants or denials of continuances. See Reno, 525 U.S. at 482, 119 S.Ct. 936 (listing a decision \"to reschedule [a] deportation hearing” among examples of actions not covered by § 1252(g)). . Sanusi argues that remand by the BIA would have allowed him to present evidence to the IJ concerning conditions in Nigeria. His motion to remand describes evidence of general conditions and does not suggest that Sanusi was prepared" }, { "docid": "6592153", "title": "", "text": "no jurisdiction in any federal court to consider the Attorney General’s decisions to commence proceedings, adjudicate cases or execute removal orders, except as provided otherwise under § 242 of the INA. Respondent further con tends that because the application is only an attempt by Mr. Riley to delay, and further frustrate the INS’s efforts to enforce a final deportation order issued against him, it is not judicially reviewable. Respondent cites to AADC; Bhatt v. Reno, 204 F.3d 744, 748 (7th Cir.1999) (affirming the district court’s holding that § 242(g) barred federal court jurisdiction to review the alien’s habeas corpus action, which was filed after the INS issued a letter directing him to report for deportation, when the alien had already obtained full administrative and judicial review of his challenges to the final deportation order); and Mapoy v. Carroll, 185 F.3d 224, 228 (4th Cir.1999) (holding that § 242(g) precluded jurisdiction to review the petitioner’s “thinly veiled attempt to evade the dictates” of the statute, when he filed suit challenging deportation and seeking release from detention after the INS issued a letter ordering him to report for deportation, and his administrative deportation proceedings were complete). Section 1252(g) provides that: Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. The Supreme Court has narrowly interpreted § 1252(g) to apply only to the three discrete actions of the Attorney General specified in the statute including the acts of commencing proceedings, adjudicating cases, or executing removal orders. See AADC, 525 U.S. at 482, 119 S.Ct. 936. The Supreme Court in AADC found that there are many other decisions or actions that may be part of the deportation process including the refusal to reconsider a final deportation order. AADC, 525 U.S. at 482, 119 S.Ct. 936. Mr. Riley asserts violations of his right to due process in the" }, { "docid": "22783579", "title": "", "text": "the United States longer than permitted. However, she did not apply for any form of relief from removal. The Immigration Judge (“IJ”) sustained both charges of removability and ordered petitioner removed to South Korea. The IJ declined to address petitioner’s argument that the government had “unclean hands” in the removal proceeding because of Sustaire’s misconduct and, therefore, should be estopped from removing her. On appeal, the BIA adopted and summarily affirmed the IJ’s decision. Petitioner then filed a motion to reopen to file an application to adjust her status. In support of her motion to reopen, petitioner submitted a copy of her application and documentation of an approved labor certification. However, she failed to attach an approved 1-140 Form (a petition to adjust her status to an alien worker) or other pertinent documentation, as required by 8 C.F.R. § 1003.2(c). Accordingly, the BIA denied her motion to reopen. II. When the BIA adopts the decision of the IJ, we “review the IJ’s decision as if it were that of the BIA.” Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir.2005) (en banc). We review “the IJ’s findings of fact for substantial evidence and will uphold these findings if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. at 1039-40 (quotation marks and citation omitted). We review questions of law, including due process challenges, de novo. Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 377 (9th Cir.2003). We have jurisdiction to review the BIA’s final order of removal against petitioner. 8 U.S.C. § 1252. Petitioner argues the government should be estopped from removing her due to Sustaire’s actions. Under 8 U.S.C. § 1252(g), we have no “jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders.... ” See also Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). However, we have jurisdiction over petitioner’s equitable es-toppel claim because it arises from actions taken by a" }, { "docid": "22224193", "title": "", "text": "under FYCA, the district court erred in setting aside his conviction and ordering the records of that conviction sealed. Thus, the only thing standing between him and deportation is the district court’s order barring the INS from commencing deportation proceedings on any ground not in. existence at the time of his initial sentencing. Unfortunately for Hovsepian, the district court also erred in issuing that order. 1. Jurisdiction Whether a district court possesses the authority to issue an injunction is a question of law that we review de novo. Avery Dennison Corp. v. Sumpton, 189 F.3d 868, 874 (9th Cir.1999). Title 8 U.S.C. § 1252(g) provides that “no court shall have jurisdiction to heai* any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders.” That provision does not bar the injunction proceeding here, however, because the gravamen of Hovsepian’s claim does not arise from the Attorney General’s decision or action to commence proceedings, adjudicate cases, or execute removal orders. In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), the Supreme Court emphasized that the provision applies only to the discrete listed actions. As the Court noted, “Section 1252(g) was directed against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion.” Id. at 485 n. 9, 119 S.Ct. 936. In other contexts, we have followed the Court’s instruction to interpret § 1252(g) narrowly. See, e.g., Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th Cir.2001) (holding that § 1252(g) did not bar issuance of a preliminary injunction restricting the implementation of a directive that had halted the grant of suspensions of deportation); Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1149-50 (9th Cir.20000) (en banc) (rejecting claim that statute deprived the district court of jurisdiction to enter a preliminary injunction); Barapind v. Reno, 225 F.3d 1100, 11Q9-10 (9th Cir.2000) (holding that statute does not preclude jurisdiction over habeas petition for stay of asylum proceedings). Most recently, we held that the consideration of" }, { "docid": "22334773", "title": "", "text": "is required to refer an application for suspension of deportation to an IJ for adjudication under several enumerated conditions. See id. § 240.70(d). Moreover, the INS district director is specifically authorized to withhold the adjudication of a visa petition or other application if it is determined that an “investigation has been undertaken involving a matter relating to the eligibility or the exercise of discretion ... in connection with the petition or application” and the adjudication of the petition or application would prejudice the ongoing investigation. See 8 C.F.R. § 103.2(18). CYNTHIA HOLCOMB HALL, Circuit Judge, dissenting: I dissent. The plain language of section 1252(g) deprives the district court, and this Court, of jurisdiction over the instant matter. The Supreme Court’s decision in Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), only strengthens the argument that the district court did not have jurisdiction over this issue of executive adjudication. Section 1252(g) delineates three specific areas where Congress decided to streamline the immigration process by precluding judicial review. The statute states in relevant part: Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. 8 U.S.C. § 1252(g) (Supp. II 1996) (emphasis added). The Supreme Court read section 1252(g) to prevent review of “three discrete actions” of the Attorney General. American-Arab, 525 U.S. at 482, 119 S.Ct. 936. As the Court explained, the “theme” of the IRRIRA is to shield certain executive decisions on immigration from judicial interference. Id. at 486, 119 S.Ct. 936. While the Court called for a “narrow reading” of section 1252(g), it found that the statute prevented judicial review of the claims of several resident aliens who alleged that they were the targets of selective enforcement by the INS. Id. at 487, 119 S.Ct. 936. The resident aliens’ claim that they had been targeted for" }, { "docid": "23614400", "title": "", "text": "aliens who fell within the transitional rules. In apparent conflict with these transitional rules, IIRIRA § 306(c)(1) directs that § 1252(g) shall apply without limitation to all past, pending, and future cases. See Selgeka, 184 F.3d at 341. Section 1252(g) provides that: Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. 8 U.S.C.A. § 1252(g) (West 1999). A literal reading of this provision seems to deprive all federal courts of jurisdiction “[ejxcept as provided in” § 1252(g). Id. If the jurisdiction-excluding language of § 1252(g) precludes all other sources of jurisdiction in deportation cases and incorporates the other jurisdiction-related provisions provided in § 1252, then it would directly conflict with the transitional rules as set out in § 309(c)(1). Furthermore, on its face, § 1252(g) appears to insulate from review by any court decisions of the Attorney General on all deportation-related cases including final orders of deportation. Such a statutory scheme would likely raise substantial constitutional problems. Fortunately, recent Supreme Court authority has clarified both of these issues. In Reno v. American-Arab Anti-Discrimination Committee, the Supreme Court deciphered this apparent conflict and helped us avoid constitutional problems by construing § 1252(g) narrowly. 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (“AADC II ”). Although AADC II did not directly present the question of whether § 1252(g) precludes judicial review of habeas corpus petitions in district court, as we noted in Selgeka, the Court “rejected the notion that section 1252(g) ‘covers the universe of deportation claims.’ ” Selgeka, 184 F.3d at 341 (quoting AADC II, 525 U.S. at -, 119 S.Ct. at 943). The Court concluded instead that § 1252(g) applies only to the “three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’ ” AADC II, 525 U.S. at" }, { "docid": "15009198", "title": "", "text": "1252(g) precludes review of any action related to removal proceedings with the sole exception of a final order of removal, then, by insulating BIA decisions to sua sponte reopen proceedings, § 1252(g) effectively becomes a “do-over” provision, allowing the BIA to repeatedly remand proceedings to a new IJ until the government likes the outcome. As already discussed, supra Part 111(A)(1), such a result would give rise to serious due process concerns. Fortunately, the Supreme Court has explained that § 1252(g) has a more limited scope than the government claims for it. In Reno v. American-Arab Anti-Discrimination Committee, the Court said that § 1252(g) was designed to address only three discrete actions by the Attorney General: the “decision or action to commence proceedings, adjudicate cases, or execute removal orders.” 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (internal quotation marks omitted). It is not “a sort of ‘zipper’ clause that says ‘no judicial review in deportation cases unless this section provides judicial review,’ ” as “it is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings.” Id. Instead, § 1252(g) was “directed against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion.” Id. at 485 n. 9, 119 S.Ct. 936. We recognize that BIA decisions may be construed as actions of the Attorney General, see, e.g., 8 C.F.R. § 1003.1(a)(1) (explaining that the members of the BIA are “appointed by the Attorney General to act as the Attorney General’s delegates”), and, therefore, that BIA actions may in some cases implicate § 1252(g). This is not one of those cases, however, because the decision to sua sponte reopen proceedings is not a prosecutorial decision to “commence proceedings, adjudicate cases, or execute removal orders.” Reno, 525 U.S. at 482, 119 S.Ct. 936. Rather, it is a quasi-judicial decision to reconsider an already adjudicated case. An argument might be made that a decision to reopen is similar enough in character to a decision to adjudicate a case in the first instance that" }, { "docid": "22975743", "title": "", "text": "by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act. 8 U.S.C. § 1252(g). AADC held that § 1252(g) “applies only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’ ” 525 U.S. at 482, 119 S.Ct. 936. Section 1252(g), consequently, does not bar “all claims relating in any way to deportation proceedings.” Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1150 (9th Cir.2000) (en banc). As AADC noted, “[t]here are of course many other decisions or actions that may be part of the deportation process — such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final deportation order ..., and to refuse reconsideration of that order.” AADC, 525 U.S. at 482, 119 S.Ct. 936. Following AADC, we have narrowly construed § 1252(g). For example, we have held that “the reference to ‘executing removal orders’ appearing in [§ 1252(g)] should be interpreted narrowly, and not as referring to the underlying merits of the removal decision.” Maharaj v. Ashcroft, 295 F.3d 963, 965 (9th Cir.2002) (citations omitted). Similarly, in Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th Cir.2001), we held that § 1252(g) does not bar judicial review of decisions or actions that occur during the formal adjudicatory process, because they are separate from the “decision to adjudicate.” Sulit v. Schiltgen, 213 F.3d 449 (9th Cir.2000), determined that § 1252(g) does not bar the due process claims of aliens alleging that their green cards were improperly seized without a hearing, that the INS failed to provide them with notice requiring them to surrender for deportation, and that them counsel failed to notify them of the issuance of the court’s decision. See id. at 452-53 & n. 1; see also Catholic Soc. Servs., 232 F.3d at 1150 (concluding that § 1252(g) does not limit jurisdiction to grant injunctive relief in" }, { "docid": "17114865", "title": "", "text": "Bogus-law is raising a grievance around the same time that the INS is planning to execute a removal order. The Supreme Court, however, has instructed otherwise. In Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), the Court held that § 1252(g) restricts the district courts’ power only in the three circumstances discussed in the text: when the alien challenges discretionary actions taken by the Attorney General to (1) commence proceedings, (2) adjudicate cases, and (3) execute removal orders. AADC, 525 U.S. at 482, 119 S.Ct. 936. See also Bhatt v. Reno, 204 F.3d 744, 747 (7th Cir.2000). This court has held that § 1252(g) precludes jurisdiction even in habeas cases such as this one, but (perhaps obviously) only where the statute is applicable — ie. the three areas that the Supreme Court noted in AADC. See Singh v. Reno, 182 F.3d 504, 508-09 (7th Cir.1999) (holding § 1252(g) applicable to habeas claim that challenged INS deportation decision). This case does not fall into any of those categories. Certainly Boguslaw has filed his habeas petition because he does not want to go back to Poland, but that cannot be a sufficient basis for invoking § 1252(g). The INS’s suggested reading would render AADC entirely meaningless, since almost every alien who brings a claim to federal court — whether on appeal from the Board of Immigration Appeals (BIA), through a habeas petition, or via some other route — • does so because she is threatened with removal from the United States. This interpretation might lead to tension with our earlier decision in Kashani v. Nelson, 793 F.2d 818 (7th Cir.1986), in which we dismissed for failure to exhaust administrative remedies a case brought by an alien challenging the district director’s denial of asylum, reasoning that the alien could raise the same claim again in removal proceedings. Nothing in AADC undermines Kashani; to the contrary, AADC supports the importance of proper use of the administrative process. As the INS would have it here, the alien not only would be barred from raising virtually all claims" } ]

[ { "docid": "22739348", "title": "", "text": "(as defined in section 151 (e) (4)).” “§ 1.117-4. Items not considered as scholarships or fellowship grants. “The following payments or allowances shall not be considered to be amounts received as a scholarship or a fellowship grant for the purpose of section 117: “(e) Amounts paid as compensation for services or primarily for the benefit of the grantor. (1) Except as provided in paragraph (a) of § 1.117-2, any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present, or future employment services or represents payment for services which are subject to the direction or supervision of the grantor. “ (2) Any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research primarily for the benefit of the grantor. “However, amounts paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research are considered to be amounts received as a scholarship or fellowship grant for the purpose of section 117 if the primary purpose of the studies or research is to further the education and training of the recipient in his individual capacity and the amount provided by the grantor for such purpose does not represent compensation or payment for the services described in subparagraph (1) of this paragraph. Neither the fact that the recipient is required to furnish reports of his progress to the grantor, nor the fact that the results of his studies or research may be of some incidental benefit to the grantor shall, of itself, be considered to destroy the essential character of such amount as a scholarship or fellowship grant.” Generally in accord with Ussery are Reese v. Commissioner, 373 F. 2d 742 (C. A. 4th Cir.); Stewart v. United States, 363 F. 2d 355 (C. A. 6th Cir.); and Woddail v. Commissioner, 321 F. 2d 721 (C. A. 10th Cir.). See also Reiffen v. United States, 180 Ct. Cl. 296, 376 F. 2d 883. Subsection (b) goes on to except" } ]

[ { "docid": "10407262", "title": "", "text": "OPINION Naum, Judge: Section 117(a) excludes from gross income any amount received “as a scholarship at an educational institution” or “as a'fellowship grant.” Section 117 (b) (2) limits the amount of the exclusion available to nondegree candidates “to an amount equal to $300 times the number of months for which the recipient received amounts under the scholarship or fellowship grant” during the taxable year. Although on his return petitioner claimed a $3,600 deduction attributable to the payments he received from the Center, he now claims that $3,600 should be excluded from his gross income under section 117. Section 1.117-4 (c) of the regulations provides that certain payments are not to be considered scholarships or fellowship grants for purposes of the section 117 exclusion: Sec. 1.117-4 Items not considered as scholarships or fellowship grants. The following payments or allowances shall not be considered to be amounts received as a scholarship or a fellowship grant for the purpose of section 117: (c) Amounts paid as compensation for services or primaA'ily for the benefit of the grantor. (1) Except as provided in paragraph (a) of § 1.117-2, any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present, or future employment services or represents payment for services which are subject to the direction or supervision of the grantor. (2) Any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research primarily for the benefit of the grantor. However, amounts paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research are considered to be amounts received as a scholarship or fellowship grant for the purpose of section 117 if the primary purpose of the studies or research is to further the education and training of the recipient in his individual capacity and the amount provided by the grantor for such purpose does not represent compensation or payment for the services described in subparagraph (1) of this paragraph. Neither the" }, { "docid": "16274054", "title": "", "text": "of study or research. The term also includes any amount received in the nature of a family allowance as a part of a fellowship grant. However, the term does not include any amount provided by an individual to aid a relative, friend, or other individual in the pursuit of study or research where the grantor is motivated by family or philanthropic considerations. Treas.Reg. § 1.117-3(a), (c). .. The regulations provide: Items not considered as scholarships or fellowship grants. The following payments or allowances shall not be considered to be amounts received as a scholarship or a fellowship grant for the purpose of section 117: (c) Amounts paid as compensation for services or primarily for the benefit of the grantor. (1) Except as provided in paragraph (a) of § 1.117-2, any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research, if such amount represents either - compensation for past, present, or future employment services or represents payment for services which are subject to the direction or supervision of the grantor. (2) Any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research primarily for the benefit of the grantor. Treas.Reg. § 1.117 — 4(c). . See, e.g., Rockswold v. United States, 620 F.2d 166 (8th Cir. 1980); Wertzberger v. United States, 441 F.2d 1166 (8th Cir. 1971); Quast v. United States, 428 F.2d 750 (8th Cir. 1970); Meek v. United States, 608 F.2d 368 (9th Cir. 1979); Hembree v. United States, 464 F.2d 1262 (4th Cir. 1972); Parr v. United States, 469 F.2d 1156 (5th Cir. 1972); Woddail v. Commissioner, 321 F.2d 721 (10th Cir. 1963); Burstein v. United States, 622 F.2d 529 (Ct.Cl.1980); Fisher v. Commissioner, 56 T.C. 1201 (1971); Proskey v. Commissioner, 51 T.C. 918 (1969). But see Leathers v. United States, 471 F.2d 856 (8th Cir. 1972), cert. denied, 412 U.S. 932, 93 S.Ct. 2754, 37 L.Ed.2d 161 (1973); Bieberdorf v. Commissioner, 60 T.C. 114 (1973); Bailey v. Commissioner, 60 T.C. 447 (1973); Rev.Rul. 57-560, 1957-2 C.B. 108. ROSS," }, { "docid": "6378809", "title": "", "text": "and, therefore, was not excludable from gross income as a fellowship grant under the provisions of section 117 of the Internal Revenue Code of 1954. We will follow that opinion.” . 1954-1960 Regulations, Mertens Law of Federal Income Taxation, § 1.117-3, pp. 252-253. . “Items Not Considered as Scholarships or Fellowship Grants. The following payments or allowances shall not be considered to be amounts received as a scholarship or a fellowship grant for the purpose of section 117: * ❖ * * ❖ “(c) Amounts paid as compensation for services or primarily for the benefit of the grantor. (1) Except as provided in section 1.-117-2(a), any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present, or future employment services or represents payment for services which are subject to the direction or supervision of the grantor. (2) Any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research primarily for the benefit of the grantor. However, amounts paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research are considered to be amounts received as a scholarship or fellowship grant for the purpose of section 117 if the primary purpose of the studies or research is to further the education and training of the recipient in his individual capacity and the amount provided by the grantor for such purpose does not represent compensation or payment for the services described in subparagraph (1) of this paragraph. Neither the fact that the recipient is required to furnish reports of his progress to the grantor, nor the fact that the results of his studies or research may be of some incidental benefit to the grantor shall, of itself, be considered to destroy the essential character of such amount as a scholarship or fellowship grant.” (1954-1960 Regulations, Mertens Law of Federal Income Taxation, § 1.117-4, pp. 253-254.)" }, { "docid": "940578", "title": "", "text": "a nontaxable fellowship grant since they were made for the primary purpose of furthering his education and training and did not represent compensation for services. This conclusion of the district court was based upon its finding that the primary purpose of MCSC Hospital was the training of physicians rather than the treatment of patients. In support of this finding, the court placed considerable emphasis upon legislation of the General Assembly of the State of South Carolina which authorized the issuance of bonds to purchase land “to be used by the Medical College of South Carolina as a site for a teaching hospital.” The court also relied upon the language of the Charter of the Medical College which states in substance that it was established for the purpose of training physicians. In reaching its decision with respect to the payments received from MCSC the court below applied the so-called “primary purpose” test, citing Reese v. Commissioner of Internal Revenue, 373 F.2d 742 (4 Cir. 1967), aff’g. per curiam 45 T.C. 407 (1966). This test emanated from the Regulations promulgated by the Commissioner to implement Section 117, particularly Treasury Regulation 1.-117 which provides in pertinent part as follows: “§ 1.117-4 Items not considered as scholarship or fellowship grants. The following payments or allowances shall not be considered to be amounts received as a scholarship or a fellowship grant for the purpose of section 117: ****** (c) Amounts paid as compensation for services or primarily for the benefit of the grantor. (1) Except as provided in paragraph (a) of § 1.117-2, any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present, or future employment services or represents payment for services which are subject to the direction or supervision of the grant- or. (2) Any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research primarily for the benefit of the grant- or. However, amounts paid or allowed to, or on behalf of, an individual to" }, { "docid": "940579", "title": "", "text": "the Regulations promulgated by the Commissioner to implement Section 117, particularly Treasury Regulation 1.-117 which provides in pertinent part as follows: “§ 1.117-4 Items not considered as scholarship or fellowship grants. The following payments or allowances shall not be considered to be amounts received as a scholarship or a fellowship grant for the purpose of section 117: ****** (c) Amounts paid as compensation for services or primarily for the benefit of the grantor. (1) Except as provided in paragraph (a) of § 1.117-2, any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present, or future employment services or represents payment for services which are subject to the direction or supervision of the grant- or. (2) Any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research primarily for the benefit of the grant- or. However, amounts paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research are considered to be amounts received as a scholarship or fellowship grant for the purpose of section 117 if the primary purpose of the studies or research is to further the education and training of the recipient in his individual capacity and the amount provided by the grantor for such purpose does not represent compensation or payment for the services described in subparagraph (1) of this paragraph. * # *» On the facts of this case, however, we conclude that the district court erred in using the primary purpose of the hospital facility as the criterion for the test enunciated in the Regulations. It is not the purpose of the facility to which the Regulation refers but the primary purpose of the payment made to the taxpayer that is controlling. In Reese v. Commissioner of Internal Revenue, supra, this court upheld the tax court’s conclusion that “the primary purpose test requires a determination of the raison d’etre of the payment.” The arrangements under which Dr. Hembree served that" }, { "docid": "19305992", "title": "", "text": "by the Air Force. He performed duties subject to supervision of a hospital resident or staff member. He was eligible for participation in a retirement plan, receiving credit for time served in 1969, and he received longevity credit for pay computation purposes for the period of his senior year in medical school together with prior years in medical school and the year of internship. For the reasons stated herein we sustain the respondent’s determination. Accordingly, Decision will be entered for the respondent. See. 1.117-4 Items not considered as scholarships or fellowship grants. The following payments or allowances shall not be considered to be amounts received as a scholarship or a fellowship grant for the purpose of section 117: ******* (c) Amounts paid as compensation for services or primarily for the benefit of the grantor. (1) Except as provided in paragraph (a) of § 1.117-2, any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present, or future employment services or represents payment for services which are subject to the direction or supervision of the grantor. (2) Any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research primarily for the benefit of the grantor. However, amounts paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research are considered to be amounts received as a scholarship or fellowship grant for the purpose of section 117 if the primary purpose of the studies or research is to further the education and training of the recipient in his individual capacity and the amount provided by the grantor for such purpose does not represent compensation or payment for the services described in subparagraph (1) of this paragraph. Neither the fact that the recipient is required to furnish reports of his progress to the grantor, nor the fact that the results of his studies or research may be of some incidental benefit to the grantor shall, of itself, be considered" }, { "docid": "10993926", "title": "", "text": "OPINION Petitioner served the first half of 1967 as an intern and the second half of the year as a resident in internal medicine at Freedmen’s Hospital, Washington, D.C. It is his contention that $3,600 of the stipend that he received in that year is excludable as a fellowship grant under section 117(a) (1) (B). Respondent has determined that the stipend is fully taxable as compensation under section 61. For the reasons discussed below, we sustain respondent’s determination in this case. Section 117 provides, in the case of an individual, that gross income does not include any amount received as a scholarship or fellowship grant. It is well settled that before the exclusionary provisions of section 117 become operative, it must first be established “that the payment sought to be excluded has the normal characteristics associated with the term ‘fellowship.’ ” Elmer L. Reese, Jr., 45 T.C. 407, 413 (1966), affirmed per curiam 373 F. 2d 742 (C.A. 4, 1967). Section 1.117-3 of the Income Tax Regulations defines the term “fellowship grant” as “an amount paid or allowed to, or for the benefit of an individual to aid him hr the pursuit of study or research.” Whether a particular amount satisfies this general definition depends upon the nature of the activities carried on by the recipient. Section 1.117-4 (c) of the regulations provides that a payment will be consid ered. to be a fellowship grant for the purpose of section 117, if “the primary purpose of the studies or research is to further the education and training of the recipient in his individual capacity.” If, however, a payment represents compensation for employment services or for services which are subject to the supervision of the grantor, it is not excludable as a fellowship grant. In Bingler v. Johnson, 394 U.S. 741, 751 (1969), the Supreme Court approved the definitions contained in these regulations by stating that they “are prima facie proper, comporting as they do with the ordinary understanding of ‘scholarships’ and ‘fellowships’ as relatively disinterested, ‘no-strings’ educational grants, with no requirement of any substantial quid fro quo from the recipients.”" }, { "docid": "15303632", "title": "", "text": "of the grantor. (1) Except as provided in paragraph (a) of §1.117-2 [relating to the limitation provided in sec. 117(b)(1)], any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present, or future employment services or represents payment for services which are subject to the direction or supervision of the grantor. (2) Any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research primarily for the benefit of the grantor. However, amounts paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research are considered to be amounts received as a scholarship or fellowship grant for the purpose of section 117 if the primary purpose of the studies or research is to further the education and training of the recipient in his individual capacity and the amount provided by the grantor for such purpose does not represent compensation or payment for the services described in subparagraph (1) of this paragraph. * * * In Bingler v. Johnson, 394 U.S. 741, 751 (1969), the Supreme Court of the United States upheld the validity of this regulation and noted its consistency with “the ordinary understanding of ‘scholarships’ and ‘fellowships’ as relatively disinterested, ‘no-strings’ educational grants, with no requirement of any substantial quid pro quo from the recipients.” In Parr v. United States, 469 F. 2d 1156, 1158 (C.A. 5, 1972), and Hembree v. United States, 464 F. 2d 1262, 1264 (C.A. 4, 1972), the courts stated that the primary purpose standard of section 1.117-4(c), Income Tax Regs., relates to the purpose for which the payments are made. On the basis of the evidence in this record, we find that the payments in question constituted compensation for present services that were subject to the direction or supervision of the grantors. Petitioners rendered extensive and valuable services to Milwaukee Hospital and Veterans Hospital, the effect of which was clearly to provide the “substantial quid pro quo’’which the Supreme Court described" }, { "docid": "23537884", "title": "", "text": "and residency at MCSC had all of the indicia of an employer-employee relationship, and differed in no material respect from his service at the VA and County hospitals. [Id. at 1264.] The court added: There is another and more compelling reason for holding the subject payments taxable. The regulations require that in order to qualify for exclusion the payments must be made for the primary purpose of furthering the education and training of the recipient, and, additionally, the amount provided for such purpose shall not represent compensation or payment for services. In considering and sustaining the validity of Treasury Regulation 117-4(c) in Bingler v. Johnson, 394 U.S. 741 [,89 S.Ct. 1439, 22 L.Ed. 2d 695] (1969), the Supreme Court bypassed discussion of the “primary purpose” dialogue and bluntly stated that “the definitions supplied by the Regulation clearly are prima facie proper, comporting as they do with the ordinary understanding of ‘scholarships’ and ‘fellowships’ as relatively disinterested, ‘no-strings’ educational grants, with no requirement of any substantial quid pro quo from the recipients.” The clear import of this language is that if there is any substantial quid pro quo, i. e., compensation for services, the payments cannot qualify for exclusion from income as “fellowship” funds. [Id. at 1265.] Pre-Bingler decisions sometimes arrived at opposing answers to the question of whether payments to resident physicians pursuing advanced studies should be deemed excludable from income. However, the post-Bingler decisions called to our attention have uniformly and consistently held that payments made to medical residents and to interns who perform medical services do not qualify for exclusion from gross income as fellowships or scholarships within the meaning of § 117. See, e. g., Hembree v. United States, supra, 464 F.2d 1262; Wertzberger v. United States, supra, 441 F.2d 1166; Quast v. United States, supra, 428 F.2d 750; Tobin v. United States, 323 F.Supp. 239 (S.D.Tex.1971); Kwass v. United States, 319 F.Supp. 186 (E.D.Mich.1970). Since the salient facts clearly establish a “quid pro quo,” the motivation of the parties is not controlling; thus, I believe we are required to reverse the judgment of the district court" }, { "docid": "10993927", "title": "", "text": "paid or allowed to, or for the benefit of an individual to aid him hr the pursuit of study or research.” Whether a particular amount satisfies this general definition depends upon the nature of the activities carried on by the recipient. Section 1.117-4 (c) of the regulations provides that a payment will be consid ered. to be a fellowship grant for the purpose of section 117, if “the primary purpose of the studies or research is to further the education and training of the recipient in his individual capacity.” If, however, a payment represents compensation for employment services or for services which are subject to the supervision of the grantor, it is not excludable as a fellowship grant. In Bingler v. Johnson, 394 U.S. 741, 751 (1969), the Supreme Court approved the definitions contained in these regulations by stating that they “are prima facie proper, comporting as they do with the ordinary understanding of ‘scholarships’ and ‘fellowships’ as relatively disinterested, ‘no-strings’ educational grants, with no requirement of any substantial quid fro quo from the recipients.” In the case of Aloysius J. Proskey, 51 T.C. 918 (1969), we were faced with a situation strikingly similar to that present in the case before us now. Petitioner therein was a resident at University Hospital, Ann Arbor, Mich. He performed duties which were not unlike those performed by petitioner in the present case. He attempted to exclude $3,600 of the stipend he received for the year 1965 from income but the Commissioner determined that the total amount of the stipend for that year was includable as compensation for services under section 61. Petitioner in Proskey maintained, as does petitioner in the present case, that his principal objective in the positions he held was to obtain training in his profession — to have the opportunity to consult with staff physicians on a variety of medical problems, and, inasmuch as the institution at which he was working was the teaching arm of the medical school, training of doctors was the primary purpose for these positions. In upholding the Commissioner’s determination in Proskey we said: There can" }, { "docid": "10951919", "title": "", "text": "the ease of an individual, gross Income does not Include— (1) any amount received— * * * * * * * (B) as a fellowship grant, including the value of contributed services and accommodations; * * * Sec. 1.117-4 Items not considered as scholarships or fellowship grants. The following payments or allowances shall not be considered to be amounts received as a scholarship or a fellowship grant for the purpose of section 117 : **>»** * * (e) Amounts paid as compensation for services or primarily for the benefit of the grantor. (1) * * * any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present, or future employment services or represents payment for services which are subject to the direction or supervision of the grantor. (2) Any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research primarily for-the benefit of the grantor. However, amounts paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research are considered to be amounts received as a scholarship or fellowship grant for the purpose of section 117 If the primary purpose of the studies or research Is to further the education and training of the recipient In his Individual capacity and the amount provided by the grantor for such purpose does not represent compensation or payment for the services described In subparagraph (1) of this paragraph. Neither the fact that the recipient Is required to furnish reports of his progress to the grantor, nor the fact that the results of his studies or research may be of some Incidental benefit to the grantor shall, of Itself, be considered to destroy the essential character of such amount as a scholarship or fellowship grant. We note that the “Intern and Resident Handbook” states that “The University will pay up to the first $10.00 per month toward your health Insurance premium unless you are on a scholarship-fellowship grant. Other arrangements" }, { "docid": "23537883", "title": "", "text": "v. United States, 464 F.2d 1262 (1972), which held that stipends paid under circumstances similar to those found here did not qualify as fellowships and thus could not be excluded from gross income. In that case the district court had determined that the payments were nontaxable since they were made for , the purpose of furthering the taxpayer’s education and training. The district court based its conclusion upon a finding that the primary purpose of the Medical College of South Carolina was the training of physicians rather than the treatment of patients. The Fourth Circuit opinion by Judge Field observed: On the facts of this case, however, we conclude that the district court erred in using the primary purpose of the hospital facility as the criterion for the test enunciated in the Regulations. It is not the purpose of the facility to which the Regulation refers but the primary purpose of the payment made to the taxpayer that is controlling. * * * The arrangements under which Dr. Hembree served that portion of his internship and residency at MCSC had all of the indicia of an employer-employee relationship, and differed in no material respect from his service at the VA and County hospitals. [Id. at 1264.] The court added: There is another and more compelling reason for holding the subject payments taxable. The regulations require that in order to qualify for exclusion the payments must be made for the primary purpose of furthering the education and training of the recipient, and, additionally, the amount provided for such purpose shall not represent compensation or payment for services. In considering and sustaining the validity of Treasury Regulation 117-4(c) in Bingler v. Johnson, 394 U.S. 741 [,89 S.Ct. 1439, 22 L.Ed. 2d 695] (1969), the Supreme Court bypassed discussion of the “primary purpose” dialogue and bluntly stated that “the definitions supplied by the Regulation clearly are prima facie proper, comporting as they do with the ordinary understanding of ‘scholarships’ and ‘fellowships’ as relatively disinterested, ‘no-strings’ educational grants, with no requirement of any substantial quid pro quo from the recipients.” The clear import of" }, { "docid": "23537861", "title": "", "text": "(see paragraph (d) of this section) and the amount of tuition, matriculation, and other fees which are furnished or remitted to an individual to aid him in the pursuit of study or research. The term also includes any amount received in the nature of a family allowance as a part of a fellowship grant. However, the term does not include any amount provided by an individual to aid a relative, friend, or other individual in the pursuit of study or research where the grantor is motivated by family or philanthropic considerations.” “§ 1.117 — 4 Items not considered as scholarships or fellowship grants. “The following payments or allowances shall not be considered to be amounts received as a scholarship or a fellowship grant for the purpose of section 117: * * * * * “(c) Amounts paid as compensation for services or primarily for the benefit of the grantor. (1) Except as provided in paragraph (a) of § 1.117-2, any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present, or future employment services or- represents payment for services which are subject to the direction or supervision of the grantor. (2) Any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research primarily for the benefit of the grantor. However, amounts paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research are considered to be amounts received as a scholarship or fellowship grant for the purpose of section 117 if the primary purpose of the studies or research is to further the education and training of the recipient in his individual capacity and the amount provided by the grantor for such purpose does not represent compensation or payment for the services described in subparagraph (1) of this paragraph. Neither the fact that the recipient is required to furnish reports of his progress to the grantor, nor the fact that the results of his studies or" }, { "docid": "16274042", "title": "", "text": "394 U.S. 741, 749, 89 S.Ct. 1439, 1444, 22 L.Ed.2d 695 (1969); and such a factual determination includes analysis of the facts in light of not only the statute, but also the applicable regulations and existing case law. See Rockswold v. United States, 620 F.2d 166, 168-69 (8th Cir. 1980). The Internal Revenue Service regulations provide some definitional guidelines; and, once characterized as “scholarships” or “fellowships,” payments are subject to a further limitation that the amounts paid do not represent compensation for past, present, or future employment services. In addition to these restrictions, the regulations provide: However, amounts paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research are considered to be amounts received as a scholarship or fellowship grant for the purpose of section 117 if the primary purpose of the studies or research is to further the education and training of the recipient in his individual capacity and the amount provided by the grantor for such purpose does not represent compensation or payment for the services described in subparagraph (1) of this paragraph. Neither the fact that the recipient is required to furnish reports of his progress to the grantor, nor the fact that the results of his studies or research may be of some incidental benefits to the grantor shall, of itself, be considered to destroy the essential character of such amount as a scholarship or fellowship grant. Treas.Reg. § 1.117-A(c) (emphasis added). The Supreme Court has previously upheld the validity of these regulations, stating: [T]he definitions supplied by the Regulation clearly are prima facie proper, comporting as they do with the ordinary understanding of “scholarships” and “fellowships” as relatively disinterested, “no-strings” educational grants, with no» requirement of any substantial quid pro quo from the recipients. Bingler v. Johnson, 394 U.S. 741, 751, 89 S.Ct. 1439, 1445, 22 L.Ed.2d 695 (1969). Although there is a plethora of similar cases involving residents in degree and nondegree granting programs who have attempted unsuccessfully to apply the section 117 exclusion to a portion of their stipends, it is well settled in this" }, { "docid": "17070952", "title": "", "text": "is motivated by family or philanthropic considerations. (d) Contributed, services and accommodations. The term “contributed services and accommodations” means tsuch services and accommodations as room, board, laundry service, and similar services or accommodations which are received by an individual as a part of a scholarship or fellowship grant. The term is further clarified by section 1.117-4 (c), Income Tax Regs., which provides: See. 1.117-4 Items not considered as scholarships or fellowship grants. The following payments or allowances shall not be considered to be amounts received as -a scholarship or fellowship grant for the purpose of section 117: * * - * * s’* * * (c) Amounts paid as compensation for services or primarily for the benefit of the grantor. (1) Except as provided in paragraph (a) of §1.117-2, any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present, or future employment services or represents payment for services which are subject to the direction or supervision of the grantor. (2) Any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research * * * are considered to be amounts received as a scholarship or fellowship grant for the purpose of section 117 if the primary purpose of the studies or research is to further the education and training of the recipient in his individual capacity and the amount provided by the grantor for 'such purpose does not represent compensation or payment for the services described in subparagraph (1) of this paragraph. Neither the fact that the recipient is required to furnish reports of his progress to the grantor, nor the fact that the results of his studies or research may be of some incidental benefit to the grantor shall, of itself, be considered to destroy the essential character of such amount as a scholarship or fellowship grant. In Bingler v. Johnson, 394 U.S. 741 (1969), the Supreme Court approved the 'Commissioner’s regulations which other courts had previously held to conform to the" }, { "docid": "10407263", "title": "", "text": "Except as provided in paragraph (a) of § 1.117-2, any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present, or future employment services or represents payment for services which are subject to the direction or supervision of the grantor. (2) Any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research primarily for the benefit of the grantor. However, amounts paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research are considered to be amounts received as a scholarship or fellowship grant for the purpose of section 117 if the primary purpose of the studies or research is to further the education and training of the recipient in his individual capacity and the amount provided by the grantor for such purpose does not represent compensation or payment for the services described in subparagraph (1) of this paragraph. Neither the fact that the recipient is required to furnish reports of his progress to the grantor, nor the fact that the results of his studies or research may be of some incidental benefit to the grantor shall, of itself, be considered to destroy the essential character of such amount as a scholarship or fellowship grant. The validity of the regulations was upheld by the Supreme Court in Bingler v. Johnson, 394 U.S. 741. They are “designed, at least in part, to distinguish relatively disinterested payments made primarily for the purpose of furthering the education of the recipient from payments made primarily to reward or induce the recipient’s performance of services for the benefit of the payor.” Jerry S. Turem, 54 T.C. 1494, 1505; cf. Elmer L. Reese, Jr., 45 T.C. 407, 411, affirmed per curiam 373 F. 2d 742 (C.A.4). The applicability of section 117 to payments received by resident physicians has already received judicial consideration on a number of occasions. With a few exceptions, courts considering this issue have consistently held such payments to be" }, { "docid": "15303631", "title": "", "text": "additional physicians, because “residents render much valuable service in the medical and hospital care of veteran patients.” OPINION The issue is whether petitioners are entitled to exclude certain payments from their gross incomes as scholarships or fellowship grants under section 117. Section 117(a)(1) excludes from gross income any amount received as a scholarship or fellowship grant. For individuals who are candidates for degrees, section 117(b)(1) provides, in part, that the exclusion of section 117(a)(1) shall not apply to “that portion of any amount received which represents payment for teaching, research, or other services in the nature of part-time employment required as a condition to receiving the scholarship or the fellowship grant.” That paragraph further provides that services required of all candidates as a condition for receiving a particular degree shall not be regarded as part-time employment. Section 1.117-4 of the Income Tax Regulations provides that certain payments or allowances will not be considered to be scholarship or fellowship grants under section 117, including: (c) Amounts paid as compensation for services or primarily for the benefit of the grantor. (1) Except as provided in paragraph (a) of §1.117-2 [relating to the limitation provided in sec. 117(b)(1)], any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present, or future employment services or represents payment for services which are subject to the direction or supervision of the grantor. (2) Any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research primarily for the benefit of the grantor. However, amounts paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research are considered to be amounts received as a scholarship or fellowship grant for the purpose of section 117 if the primary purpose of the studies or research is to further the education and training of the recipient in his individual capacity and the amount provided by the grantor for such purpose does not represent compensation or payment for" }, { "docid": "1406535", "title": "", "text": "benefit of the grantor are not to be considered as fellowship grants for purposes of section 117: •Sec. 1.117-4 Items not considered as scholarships or fellowship grants. The following payments or allowances shall not be considered to be amounts received as a scholarship or a fellowship grant for the purpose of section 117: ******* (e) Amounts paid as compensation for services or primarily for the benefit of the grantor. (1) Except as provided in paragraph (a) of § 1.117-2, any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present, or future employment services or represents payment for services which are subject to the direction or supervision of the grantor. (2) Any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research primarily for the benefit of the grantor. However, amounts paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research are considered to be amounts received as a scholarship or fellowship grant for the purpose of section 117 if the primary purpose of the studies or research is to further the education and training of the recipient in his individual capacity and the amount provided by the grantor lor such purpose does not represent compensation or payment for the services described in subparagraph (1) of this paragraph. Neither the fact that the recipient is required to furnish reports of his progress to the grantor, nor the fact that the results of his studies or research may be of some incidental benefit to the grantor shall, of itself, be considered to destroy the essential character of such amount as a scholarship or fellowship grant. Tbe Supreme Court in Bingler v. Johnson, 394 U.S. 741, 751 (1969), upheld the validity of these regulations as reflecting “the ordinary understanding of ‘scholarships’ and ‘fellowships’ as relatively disinterested, ‘no-strings’ educational grants, with no requirement of any substantial quid pro quo from the recipients.” The crucial test of the above" }, { "docid": "3934174", "title": "", "text": "general surgery, and was paid $5,557.59 by the University of Florida Hospital College of Medicine. Both of these institutions are referral hospitals, receiving more applications for patient admission than they can accept, and accepting patients largely on the basis of their educational value to the “students”. . The pertinent Treasury regulation setting out the “primary purpose test” is Treasury regulation § 1.117 which provides, “ § 1.117-4 Items not considered as a scholarship or fellowship grants. The following payments or allowances shall not be considered to be amounts received as a scholarship or a fellowship grant for the purpose of section 117: * :|: a: a: * (c) Amounts paid as compensation for services or primarily for the benefit of the grantor. (1) Except as provided in paragraph (a) of § 1.117-2, any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present, or future employment services or represents payment for services which are subject to the direction or supervision of the grantor. (2) Any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research primarily for the benefit of the grantor. However, amounts paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research are considered to be amounts received as a scholarship or fellowship grant for the purpose of section 117 if the primary purpose of the studies or research is to further the education and training of the recipient in his individual capacity and the amount provided by the grantor for such purpose does not represent compensation or payment for the services described in subparagraph (1) of this paragraph. Neither the fact that the recipient is required to furnish reports of his progress to the grantor, nor the fact that the results of his studies or research may be of some incidental benefit to the grantor shall, of itself, be considered to destroy the essential character of such amount ■ as a scholarship" }, { "docid": "5512735", "title": "", "text": "(B) Extent of exclusion. — The amount of the scholarship or fellowship grant excluded under subsection (a)(1) in any taxable year shall be limited to an amount equal to $300 times the number of months for which the recipient received amounts under the scholarship or fellowship grant during such taxable year .... . Treasury Regulation § 1.117-4(c) provides: (c) Amounts paid as compensation for services or primarily for the benefit of the grantor. (1) Except as provided in paragraph (a) of § 1.117-2, any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present, or future employment services or represents payment for services which are subject to the direction or supervision of the grantor. (2) Any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research primarily for the benefit of the grantor. However, amounts paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research are considered to be amounts received as a scholarship or fellowship grant for the purpose of section 117 if the primary purpose of the studies or research is to further the education and training of the recipient in his individual capacity and the amount provided by the grantor for such purpose does not represent compensation or payment for the services described in subparagraph (1) of this paragraph. Neither the fact that the recipient is required to furnish reports of his progress to the grantor, nor the fact that the results of his studies or research may be of some incidental benefit to the grantor shall, of itself, be considered to destroy the essential character of such amount as a scholarship or fellowship grant." } ]

[ { "docid": "22652139", "title": "", "text": "the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. “In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 123 (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U. S. 338, 342 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844 (1982). This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts. To be sure, various Courts of Appeals have on occasion asserted the theory that an appellate court may exercise de novo review over findings not based on credibility determinations. See, e. g., Orvis v. Higgins, 180 F. 2d 537 (CA2 1950); Lydle v. United States, 635 F. 2d 763, 765, n. 1 (CA6 1981); Swanson v. Baker Industries, Inc., 615 F. 2d 479, 483 (CA8 1980). This theory has an impressive genealogy, having first been articulated in an opinion written by Judge Frank and subscribed to by Judge Augustus Hand, see Orvis v. Higgins, supra, but it is impossible to trace the theory’s lineage back to the text of Rule 52(a), which states straightforwardly that “findings of fact shall not be set aside unless clearly erroneous.” That the Rule goes on to emphasize the special deference to be paid credibility determinations does" } ]

[ { "docid": "23392637", "title": "", "text": "at 34. Accordingly, State Steel argues that “the District Court committed reversible error when it granted [A & M’s Rule 52(c) motion] and did not require [A & M] to present evidence or testimony regarding State Steel’s claims.... ” State Steel Reply Br. at 1-2. We disagree. We do not understand State Steel to argue that it was not “fully heard” on its claim for unjust enrichment, rendering a Rule 52(c) disposition unavailable. Instead, we understand it to challenge the District Court’s key factual finding as clearly erroneous because A & M did not present testimony corroborating Joint Exhibit 25 and Defendant’s Exhibit 1. This, it says, precluded it from cross-examining A & M’s witnesses in the hopes of undermining the reliability of the exhibits. Unapparent to us, however, is any reason why A & M would shoulder an affirmative burden to introduce testimony for the sole purpose of allowing State Steel an opportunity to deconstruct the documentary evidence. To the contrary, Rule 52 and the Supreme Court instruct us to review factual findings for clear error, no matter the character of the evidence cited in support: If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.... This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.... Rule 52(a) does not make exceptions or purport to exclude certain categories of factual findings from the obligation of a court of appeals to accept a district court’s findings unless clearly erroneous. Bessemer City, 470 U.S. at 573-74, 105 S.Ct. 1504 (quotation marks and citations omitted); see also Fed.R.Civ.P. 52(a)(6) (prescribing clear-error review “whether based on oral or other evidence”). The burdens of production and persuasion rested entirely with State Steel to establish its claim, see Torchia, 499 A.2d at 582, and therefore A & M need" }, { "docid": "18081040", "title": "", "text": "name and other identifying information. (J.A. at 1407, 1416, 1423, 1441, 1461, 1861, 1877.) II. Standard of Review This Court reviews for clear error when the district court’s evidentiary rulings pertain to the determination of Demjanjuk’s identity. Owens-Illinois, Inc. v. Aetna Cas. & Sur. Co., 990 F.2d 865, 870 (6th Cir.1993) (stating the deference to be afforded a district court’s findings of fact upon the conclusion of a bench trial is clear error, whether the facts were based on oral or documentary evidence, because “factual conclusions rendered by a district court sitting without a jury are binding on appeal unless this Court is left with a definite and firm conviction that a mistake has been made,” and that “[i]t is the appellant who must shoulder the burden of proving such a mistake ....”) (citation omitted). Under the clearly erroneous standard, “[wjhere there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous,” and it “is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.” Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (citations omitted). Additionally, because Defendant failed to object to the Trawniki service pass at trial on the ground now asserted on appeal — namely, that the card is inadmissible hearsay — this Court reviews for plain error Defendant’s contention that the service pass was erroneously admitted into evidence. United States v. Evans, 883 F.2d 496, 499 (6th Cir.1989) (“The ‘plain error’ rule also applies [where] a party objects to [an evidentiary determination] on specific grounds in the trial court, but on appeal the party asserts new grounds challenging [that determination].”). At trial, Defendant objected to the admissibility of the service pass on grounds that it lacked authenticity, as required by Fed. R.Evid. 902; reliability as an ancient document, as required by Fed.R.Evid. 901(b)(8); and personal knowledge by declarant, as required by Fed.R.Evid. 602. On appeal, however, Defendant now asserts a different objection: inadmissibility of the service pass" }, { "docid": "23144114", "title": "", "text": "the majority has attempted to transform the concerns of the dissenters in Bourjaily into the law of this circuit. {See maj. op. at 577-78, citing Bourjaily dissents.) I must, therefore, respectfully dissent. C. The majority’s analysis of the district court’s admissibility determination in this case also ignores our very limited role in reviewing the factual findings of the district court. We do not review the finding of a sufficient connection to the conspiracy de novo, but may reverse only if we determine that the district court’s finding is clearly erroneous. See Bourjaily, 107 S.Ct. at 2782; see also id. at 2778 (“the existence of a conspiracy and petitioner’s involvement in it are preliminary questions of fact that, under Rule 104, must be resolved by the court”). Under the clearly erroneous standard, a reviewing court may not reverse a district court’s view of the evidence as long as it “is plausible in light of the record viewed in its entirety ... even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (Anderson) (construing Fed.R.Civ.P. 52(a)); see also United States v. McConney, 728 F.2d 1195, 1200 n. 5 (9th Cir.) (en banc) (explaining that the clearly erroneous test set forth in Rule 52(a) is applicable to both civil and criminal proceedings), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 88 L.Ed.2d 46 (1984). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574, 105 S.Ct. at 1511. Moreover, the rule that deference must be paid to the original finder of fact applies even where the district court’s findings do not rest on a credibility determination, but are based instead on inferences from other facts. Id. In the present case, the district court’s finding that substantial evidence established Silverman's connection to the conspiracy rested on the inferences drawn from the circumstantial evidence presented by the government. Under Anderson, findings of the district" }, { "docid": "17545851", "title": "", "text": "with our observation that \"undue hardship requires a determination of the legal effect of the bankruptcy court’s findings regarding the student’s circumstances, a question of law which we review de novo.\" In re Mason, 464 F.3d at 881 (internal quotation marks omitted). This is simply another way of stating that we review the application of Brunner de novo, i.e., whether the bankruptcy court properly applied the three-prong test. For instance, if the bankruptcy court had granted a discharge based only on the first two prongs of Brunner, we would reverse under de novo review. . Clear error applies even though Judge Brandt based his findings on the trial transcript and other documentary evidence. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (\"Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. This is so even when the [trial] court's findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.” (internal citations omitted)); see also Fed.R.Civ.P. 52(a)(6). . We need not determine if, as the bankruptcy court ruled, uncontested garnishments demonstrate good faith. Even if this view of the evidence was improper, the court's interpretation of the record as a whole was not clearly erroneous." }, { "docid": "129018", "title": "", "text": "light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Id. at —, 105 S.Ct. at 1512. Accordingly, we do not have the authority to reverse the district court’s finding simply because we may have reached another finding as to intent. We are required to examine the entire record — the contractual provisions as well as other evidence that was before the district court. Furthermore, our review is no less circumscribed, “even when the district court’s findings do not rest on credibility determinations, but are based instead on ... documentary evidence or inferences from other facts.” Id. Section 2 of the Harkins/Waldinger subcontract can be read to limit the scope of the subcontract’s arbitration provision to the narrower provisions of the Tishman/Harkins primary contract. The Harkins’ affidavit and the amendment proposed by Waldinger further support the district court’s finding of what the parties intended. We therefore hold that the district court’s interpretation of the contractual language was not clearly erroneous. VI. Waldinger challenges the district court’s judgment on several other grounds, all of which we find unpersuasive. First, it relies on several cases where courts have held that an incorporation clause in a subcontract does not limit the dispute resolution method specified in the subcontract. Facts in these cases, however, differ from the matter at bar. In John W. Johnson, Inc. v. Basic Construction Co., 429 F.2d 764, 773 (D.C.Cir.1970), a clause in the primary contract stated that the contractor would bind subcontractors to the terms and provisions of the primary contract which were “applicable to the work.” Here the incorporation clause was not limited to work. This factual distinction also applies to McKinney Drilling Co. v. Collins Co., 517 F.Supp. 320, 328 n. 7 (N.D.Ala.1981), affirmed,. 701 F.2d 132 (11th Cir.1983), another case upon which appellant relies heavily. Moreover, in McKinney Drilling Co., the court" }, { "docid": "2807541", "title": "", "text": "district court that La Resolana has not established copying as a factual matter. As a result, and for the reasons noted below, La Resolana cannot prevail on this appeal. “In an appeal from a bench trial, we review the district court’s factual findings for clear error and its legal conclusions de novo.” Keys Youth Servs., Inc. v. City of Olathe, Kan., 248 F.3d 1267, 1274 (10th Cir.2001). “Findings of fact are clearly erroneous when they are unsupported in the record, or if after our review of the record we have the definite and firm conviction that a mistake has been made.” Transwestern Publ’g Co. v. Multimedia Mktg. Assocs., Inc., 133 F.3d 773, 775 (10th Cir.1998) (internal quotation marks omitted). “If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). This admonition applies equally regardless of whether the district court’s factual findings are based on credibility determinations or on documentary evidence. Id. at 574, 105 S.Ct. 1504 (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.” (citation omitted)). A. Copyright Infringement There are two elements to a copyright infringement claim: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). The plaintiff bears the burden of proof on both elements. Palladium Music, Inc. v. Eat-SleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir.2005). Because Reno, Inc. and SWIT do not challenge the validity of La Resolana’s copyright, we address only the second" }, { "docid": "12058944", "title": "", "text": "erroneous standard. Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Questions of law are reviewed de novo. Atonio v. Wards Cove Packing Co., Inc., 827 F.2d 439, 443 (9th Cir.1987) (Atonio II), cert. denied, — U.S. -, 108 S.Ct. 1293, 99 L.Ed.2d 503 (1988). The City argues, however, that de novo review of all issues, including factual determinations, should be applied in cases of strong public interest to both employees and/or public agencies, particularly in Title VII actions involving promotional decisions. We reject this argument. The standard of review for factual and legal determinations in Title VII cases is well established and leaves no room for variance. Factual findings are incontestably reviewed under the clearly erroneous standard and questions of law are reviewed de novo: This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently ... ‘In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.’ Anderson, 470 U.S. at 573, 105 S.Ct. at 1511 (quoting Zenith Radio Cory. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969)). Moreover, [i]f the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts. Anderson, 470 U.S. at 573-74, 105 S.Ct. at 1511-12 (citations omitted) (emphasis added); See United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct." }, { "docid": "8654064", "title": "", "text": "issue of when a plaintiff knew or with reasonable diligence should have known of a cause of action is a question for the finder of fact. See, e.g., Maughan v. SW Servicing, Inc., 758 F.2d 1381 (10th Cir.1985); Lundy v. Union Carbide Corp., 695 F.2d 394 (9th Cir.1982); Ballew v. A.H. Robins Co., 688 F.2d 1325 (11th Cir.1982); Renfroe v. Eli Lilly & Co., 686 F.2d 642 (8th Cir.1982). The Supreme Court recently made clear the standard we are to apply in reviewing a trial court’s factual findings in Anderson v. City of Bessemmer City, — U.S.-, -, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985): This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52 if it undertakes to duplicate the role of the lower court. ‘In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.’ ... If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous____ This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts. (citations omitted). In my view, the majority misconceives our role as a reviewing court. Not only is the district court better equipped to find facts, but fairness dictates that those findings be overturned only with great circumspection. As the Court noted in Bessemer City: the parties to a case on appeal have already been forced to concentrate their energies and" }, { "docid": "2836333", "title": "", "text": "they are “clearly erroneous.” “This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently.” Anderson v. City of Bessemer City, — U.S. —, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Although American, at least in its reply brief, pays lip service to this principle, its attack upon the district court’s factual determinations in actuality is but a reargument of the case it lost on the facts in the district court. It discusses in detail the evidence supporting its version of the facts, and largely ignores or downplays the contrary evidence that the district court accepted. It also ignores the district court’s credibility determinations. American makes no serious attempt to show that particular findings are clearly erroneous, but rather contends that the district court should have decided the factual issues the other way. As the Supreme Court recently stated in Anderson v. City of Bessemer City, however: If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous____ This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts. Id. 105 S.Ct. at 1512 (citations omitted). It is in the light of the foregoing principles that we review American’s challenges to the district court’s findings and conclusions. Ill The district court pointed out that since American had not licensed the Marvin patent, there was no existing royalty rate. It therefore “turn[ed] to the best evidence of what a reasonable royalty would produce— that is, royalties paid by others for use of a comparable patent in the industry.” That was the amount, the court concluded, that “a licensee" }, { "docid": "17545850", "title": "", "text": "and thus that he could not maintain a minimal standard of living if required to repay the loans in full. . $300 per month exceeded the bankruptcy court's finding, on the first Brunner prong, of how much income Hedlund could devote to student loan payments. . At least one other circuit has expressly applied clear error to the § 523 good faith inquiry. See Krieger v. Educ. Credit Mgt. Corp., 713 F.3d 882, 884 (7th Cir.2013) (\"[The good faith] standard combines a state of mind (a fact) with a legal characterization (a mixed question of law and fact). Findings of fact must stand unless clearly erroneous, and... .mixed questions likewise are treated as factual in nature.”). . We also note that under our established standard of review of bankruptcy court rulings, after review by the district court or by the BAP, see Ragsdale, 780 F.2d at 795, the district court’s ruling on the good faith issue would not have been entitled to any deference, but would be reviewed “independently.” .Similarly, clear error review is consistent with our observation that \"undue hardship requires a determination of the legal effect of the bankruptcy court’s findings regarding the student’s circumstances, a question of law which we review de novo.\" In re Mason, 464 F.3d at 881 (internal quotation marks omitted). This is simply another way of stating that we review the application of Brunner de novo, i.e., whether the bankruptcy court properly applied the three-prong test. For instance, if the bankruptcy court had granted a discharge based only on the first two prongs of Brunner, we would reverse under de novo review. . Clear error applies even though Judge Brandt based his findings on the trial transcript and other documentary evidence. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (\"Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. This is so even when the [trial] court's findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or" }, { "docid": "20880407", "title": "", "text": "findings will not be disturbed. In re Edward M. Johnson and Assoc., Inc. (Newton v. Johnson), 845 F.2d 1395, 1401 (6th Cir.1988) (quoting Slodov v. United States, 552 F.2d 159, 162 (6th Cir.1977) (citation omitted)). A reviewing court is not entitled to review findings of fact de novo, Anderson, 470 U.S. at 573, 105 S.Ct. at 1511 (citation omitted), and when there are two permissible views of the evidence, the court may not hold that the trial court’s findings are clearly erroneous. Id. at 574, 105 S.Ct. at 1511-12 (citations omitted). This is true when the court’s findings are based on physical or documentary evidence. Id. Although factual findings based on credibility determinations warrant even greater deference, id. at 575, 105 S.Ct. at 1512, a “trial judge may [not] insulate his findings from review by denominating them credibility determinations____” Id. The reviewing court may determine that the “story” is “so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.” Id. While a factfinder who does not believe the testimony “may simply disregard it,” the unbelieved testimony is usually not considered sufficient grounds for drawing the opposite conclusion. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 512, 104 S.Ct. 1949, 1966, 80 L.Ed.2d 502 (1984). III. A. The bankruptcy court’s finding that the assurances in Scheirich’s newsletters during the Chapter 11 period fell short of misrepresentation is not clearly erroneous. Similarly, the bankruptcy court did not commit clear error in rejecting Kitchen & Bath’s claim of a separate oral agreement to rebate the difference between the cheaper line ordered by Kitchen & Bath and the more expensive line allegedly used on a job at Scheirich’s direction. Furthermore, the finding that Kitchen & Bath failed to establish damages because of “dead inventory” is not clearly erroneous. Although Glen Garner attempted to assert all of these claims, his testimony was imprecise and totally without documentary support. B. With respect to the July 17, 1990 orders, and the “Dobyns Job” order of July 26, however, we conclude that the bankruptcy court committed clear error." }, { "docid": "23436416", "title": "", "text": "factual determination that the employer had a strong basis in evidence for its conclusion that remedial action was necessary.”); Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1565 (11th Cir.1994) (same); Howard v. McLucas, 871 F.2d 1000, 1007 (11th Cir.1989) (same). We review a district court’s factual findings only for clear error. See Fed.R.Civ.P. 52(a) (mandating that “[findings of fact shall not be set aside unless clearly erroneous”). The Supreme Court has provided considerable guidance on how the appellate courts are to apply the clearly erroneous standard. Be cause this appeal is concerned chiefly with whether the district court clearly erred in finding that the County had failed to demonstrate a sufficient evidentiary foundation to justify the existence of the MWBE programs, a detailed review of the Supreme Court’s guidance on the clearly erroneous standard is warranted. We cannot hold a district court’s finding of fact clearly erroneous unless, in view of the entire record, we are “left with a definite and firm conviction that a mistake, has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (citation and internal quotation marks omitted). That is an exacting standard, purposefully designed to restrict second guessing in the factfinding arena. As the Supreme Court has explained: This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently____ If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous. Id. at 573-74, 105 S.Ct. at 1511 (citations omitted). Furthermore, our scope of review is no less circumscribed when the district court’s factfindings rest on physical or documentary evidence instead of credibility determinations. See id. at 574, 105 S.Ct." }, { "docid": "23673543", "title": "", "text": "not present questions of fact because it does not turn on credibility determinations and that leaving these questions to de novo review by our court assures greater correctness of result. The Supreme Court has made clear, however, that this narrow view of the trial court’s factfinding function is an inaccurate one. The district court’s expertise is “not limited to the superiority of the trial judge’s position to make determinations of credibility,” but instead extends to all factual determinations. Anderson, 470 U.S. at 574, 105 S.Ct. 1504. These determinations include findings “based on physical or documentary evidence or inference from other facts.” Id. The Supreme Court has explained that Rule 52(a) requires deference to these findings, as well as those that turn on witness credibility. Id. Indeed, the Court has rejected the concurrence’s reasoning with respect to Rule 52(a)(6), not only in its case law, but also through its rulemaking. In 1985, Rule 52(a) was amended, in part, because [s]ome courts of appeal have stated that when a trial court’s findings do not rest on demeanor evidence and evaluation of a witnesses] credibility, there is no reason to defer to the trial court’s findings and the appellate court more readily can find them to be clearly erroneous. See, e.g., Marcum v. United States, 621 F.2d 142, 144-45 (5th Cir.1980). Others go further, holding that appellate review may be had without application of the “clearly erroneous” test since the appellate court is in as good a position as the trial court to review a purely documentary record. Fed.R.Civ.P. 52 advisory committee’s note (1985) (collecting cases). The Advisory Committee continued: The principal argument advanced in favor of a more searching appellate review of findings by the district court based solely on documentary evidence is that the rationale of Rule 52(a) does not apply when the findings do not rest on the trial court’s assessment of credibility of the witnesses but on an evaluation of documentary proof and the drawing of inferences from it, thus eliminating the need for any special deference to the trial court’s findings. These considerations are outweighed by the public" }, { "docid": "22449826", "title": "", "text": "INS agents. To put it another way, I think, is naive. And I believe that he was. And I find as fact those matters which I have stated and with that conclusion. (J.A. at 223-25.) As Farrow correctly points out, a portion of the District Court’s analysis cannot withstand scrutiny. Specifically, there is no basis for concluding that “the jury saw it that way” where, as explained earlier, a conviction under 18 U.S.C. § 111 does not require a showing that the defendant was aware of the victim’s official status. See Boone, supra, 738 F.2d at 765. Accordingly, the jury verdict provides no basis for determining, one way or the other, whether Farrow knew or had reason to believe that Agent Ward was a law enforcement officer. Nevertheless, despite this flaw in the District Court’s reasoning, we find no basis for rejecting the lower court’s ultimate factual finding. Mindful of the “clearly erroneous” standard governing our review, we may not reverse the District Court’s factual findings based solely on a belief that we would have reached a different result. See Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). As the Anderson Court instructed: If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. 470 U.S. at 573-74, 105 S.Ct. at 1511. The Court further explained that “[t]his is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.” 470 U.S. at 574, 105 S.Ct. at 1511-12. The rule stated in Anderson governs the situation before us. The evidence presented to the District Court permitted two contrary conclusions: one, that Farrow had reason to believe that the individual who" }, { "docid": "13321862", "title": "", "text": "in the complaint. That appeal has similarly been expedited and will be the subject of a separate disposition. See Feldman v. Arizona Sec'y of State’s Office, No. 16-16865, 842 F.3d 613, 2016 WL 6472060 (9th Cir. 2016). . The dissent suggests that the district court's factual findings are entitled to less weight here because \"the district court did not conduct any evidentiary hearings to resolve disputed factual issues” and \"the parties’ submissions were by affidavit.” See Dissent at 396 n.l. Our review of factual findings, however, does not change based on the nature of the evidence. \"Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous.” Fed. R. Civ. P. 52(a)(6); see also Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (\"Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence and inferences from other facts.” (citations omitted)). It is immaterial that the fact-finding occurred here at the preliminary' injunction stage; Rule 52(a)(6) by its terms applies-to all findings of fact, which necessarily includes the findings of fact that \"the court must ... state” to support denial of an interlocutory injunction, see Fed. R. Civ. P. 52(a)(2). See Anderson, 470 U.S. at 574, 105 S.Ct. 1504 (\"Rule 52(a) ‘does not make exceptions or purport to exclude certain categories of factual findings from the obligation of a court of appeals to accept a district court's findings unless clearly erroneous.' ” (quoting Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982))). . Feldman does not raise the claim that H.B. 2023 is invalid because it was intended to suppress votes based on partisan affiliation or viewpoint, i.e., a theory of prohibited partisan fencing. . The Fifteenth Amendment provides that *'[t]he right of citizens of the United States to vote shall not be denied or abridged by the United" }, { "docid": "23436417", "title": "", "text": "City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (citation and internal quotation marks omitted). That is an exacting standard, purposefully designed to restrict second guessing in the factfinding arena. As the Supreme Court has explained: This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently____ If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous. Id. at 573-74, 105 S.Ct. at 1511 (citations omitted). Furthermore, our scope of review is no less circumscribed when the district court’s factfindings rest on physical or documentary evidence instead of credibility determinations. See id. at 574, 105 S.Ct. at 1511—12. The Supreme Court has explained with unmistakable clarity our duty in evaluating the district court’s factfindings in this ease. That duty most emphatically is not to decide whether we agree with the district court’s view of the evidence. Instead, we must determine only whether the district court’s view of the evidence, as reflected in its factfindings, is a permissible one, ie., a plausible one in light of the entire record. C. EVIDENTIARY FOUNDATION OF THE WBE PROGRAM Neither the Supreme Court nor this Court has squarely held that a district court makes a factual determination when it determines whether there exists a sufficient evidentiary basis justifying affirmative action on the basis of gender. Although we have had occasion to review the evidentiary foundation of gender-conscious affirmative action, we have conducted that review without specifically explaining whether we were reviewing the evidence de novo or instead reviewing the district court’s view of the evidence for clear error. For example, in Ensley Branch, 31 F.3d at 1581, we reviewed the evidentiary foundation of a gender-conscious" }, { "docid": "3805650", "title": "", "text": "of the clearly erroneous standard. Although the meaning of the phrase “clearly erroneous” is not immediately apparent, certain general principles governing the exercise of the appellate court’s power to overturn findings of a district court may be derived from our cases. The foremost of these principles ... is that “a finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court\"on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52 if it undertakes to duplicate the role of the lower court. “In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.” If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts____ When findings are based on determinations regarding the credibility of witnesses, Rule 52 demands even greater deference to the trial court’s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said. This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility. determinations, for factors other than demeanor and inflection go into the decision" }, { "docid": "20880406", "title": "", "text": "reviewing findings of fact by district courts. In Anderson v. City of Bessemer, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985), the Supreme Court said in regard to a federal appellate court’s review of a district court: “a ‘finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). The Court made clear that this standard does not permit a reviewing court to reverse the trial court’s findings of fact merely because it would have reached a different conclusion. Id. As long as the trial court’s findings are “reasonable and supported by the evidence,” they may not be overturned. In re Southern Indus. Banking Corp., 809 F.2d 329 (6th Cir.1987) (citation omitted). Absent the “ ‘most cogent evidence of mistake or miscarriage of justice’ ” a bankruptcy court’s findings will not be disturbed. In re Edward M. Johnson and Assoc., Inc. (Newton v. Johnson), 845 F.2d 1395, 1401 (6th Cir.1988) (quoting Slodov v. United States, 552 F.2d 159, 162 (6th Cir.1977) (citation omitted)). A reviewing court is not entitled to review findings of fact de novo, Anderson, 470 U.S. at 573, 105 S.Ct. at 1511 (citation omitted), and when there are two permissible views of the evidence, the court may not hold that the trial court’s findings are clearly erroneous. Id. at 574, 105 S.Ct. at 1511-12 (citations omitted). This is true when the court’s findings are based on physical or documentary evidence. Id. Although factual findings based on credibility determinations warrant even greater deference, id. at 575, 105 S.Ct. at 1512, a “trial judge may [not] insulate his findings from review by denominating them credibility determinations____” Id. The reviewing court may determine that the “story” is “so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.” Id. While a factfinder who does not believe the testimony" }, { "docid": "9638002", "title": "", "text": "argues that the district court erroneously found as a matter of fact that plaintiff was not able to perform the essential functions of his job with or without reasonable accommodation. Federal Rule of Civil Procedure 52(a) states: Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. In Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), the Supreme Court clarified the parameters of the clearly erroneous standard in the context of employment discrimination cases. The district court had found that the plaintiff had been subjected to discrimination on account of gender when she was not selected as the city recreation director. Specifically, the district court found that the plaintiff was better qualified than the male applicant who was selected, that the male members of the selection committee were biased against female candidates, and that the reasons proffered by the selection committee for the selection of the male candidate were pretextual. The Fourth Circuit reversed the district court. Reversing the court of appeals, the Supreme Court wrote: In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts. Id. at 573-74, 105 S.Ct. at 1511. Thus, in the present case, the district court’s factual determinations in" }, { "docid": "12485515", "title": "", "text": "Bankruptcy Procedure states: the district court ... may affirm, modify, or reverse a bankruptcy judge’s judgment, order, or decree or remand with instructions for further proceedings. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses. Fed.R.Bankr.P. 8013. The district court “applies a clearly erroneous standard to findings of fact, conducts plenary review of conclusions of law, and must break down mixed questions of law and fact, applying the appropriate standard to each component.” Meridian Bank v. Alten, 958 F.2d 1226, 1229 (3d Cir.1992). The “clearly erroneous” standard under Bankruptcy Rule 8013 is the same as the standard under Federal Rule of Civil Procedure 52(a). In re B. Cohen and Sons Caterers, Inc., 108 B.R. 482, 484 n. 1. (E.D.Pa.1989). “A finding [of fact] is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 394, 68 S.Ct. 525, 92 L.Ed. 746 (1948). If the [trial] court’s account of the evidence is plausible in light of the record viewed in its entirety, the [appellate court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. This is so even when the [trial] court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts. Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). When a trial judge’s finding is “based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear" } ]

[ { "docid": "22028647", "title": "", "text": "open and the bankruptcy trustee may be joined as a party. Pursuant to 11 U.S.C. § 521(1), all bankruptcy debtors must “file a list of creditors, and unless the court orders otherwise, a schedule of assets and liabilities, a schedule of current income and current expenditures, and a statement of the debtor’s financial affairs.” The bankruptcy estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 641(a)(1). Chapter 13 expands the definition of estate property to include “all property ... specified in [§ 541] that the debtor acquires after the commencement of the case but before the case is closed.” 11 U.S.C. § 1306(a)(1). Causes of action which belong to the debtor, including employment discrimination claims, are estate property. See In re Ozark Restaurant Equip. Co., Inc., 816 F.2d 1222, 1225 (8th Cir.), cert. denied, 484 U.S. 848, 108 S.Ct. 147, 98 L.Ed.2d 102 (1987); Bickford v. Ponce De Leon Center, 918 F.Supp. 377, 378 (M.D.Fla.1996); Harris v. St. Louis Univ., 114 B.R. 647, 648 (E.D.Mo.1990). Accordingly, the bankruptcy trustee steps into the shoes of the debtor for purposes of asserting or maintaining the debt- or’s causes of action. In re B.J. McAdams, 66 F.3d 931, 935 (8th Cir.1995). Therefore, unless the trustee abandons the property, only the trustee is authorized to pursue a cause of action. 11 U.S.C. § 323; Harris, 114 B.R. at 648-49; Cain v. Hyatt, 101 B.R. 440, 441 (E.D.Pa.1989). Here, the Bankruptcy Court records indicate that plaintiff failed to list this cause of action on his schedule of assets and liabilities notwithstanding the fact that the action allegedly accrued in February of 1992 (although it was not filed until May 16, 1995). The records also indicate that a trustee has been appointed in the bankruptcy action. Plaintiff therefore lacks standing to pursue this employment discrimination action in his own name. More troubling to the Court, however, is whether plaintiff should be judicially estopped from pursuing the action due to his failure to list it as an asset. “A long-standing tenet of bankruptcy law" } ]

[ { "docid": "14176698", "title": "", "text": "plaintiff can prove those facts or will ultimately prevail on the merits.” McTernan, 564 F.3d at 646 (citing Twombly 550 U.S. at 555-556, 127 S.Ct. 1955). No less than any other type of case, civil RICO plaintiffs are required to plead, with “some specificity,” facts sufficient to plausibly give rise to entitlement to relief. In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 369-370 (3d Cir.2010). III. Discussion A. The Effect of Macauley’s Bankruptcy Before discussing the merits of Ma-cauley’s claims, the Court must be satisfied that Macauley is the correct plaintiff in this action. Defendant Aurora Commercial Corp. (“Aurora”) argues Macauley lacks standing to bring her claims because she failed to list them as assets when she filed for bankruptcy. (Aurora’s Mot. J. Pleadings at 12-13.) The Court agrees. Because Macauley-failed to disclose these causes of action in her bankruptcy petition, she lacks standing to pursue them now. The Chapter 7 trustee is the only person that has ‘ the ' authority to bring these claims, and he or she must be substituted as the real party in interest under Federal Rule of Civil Procedure 17 if this case is to continue. A debtor filing for bankruptcy protection under Chapter 7 creates an estate, which “includes all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). “The broad scope of § 541 includes causes of action existing at the time the bankruptcy petition is filed.” Nicolaides v. Bank of Am. Corp., CIV.A. 10-1762, 2012 WL 2864468, at *8 (E.D.Pa. July 12, 2012) (citing Anderson v. Acme Markets, Inc., 287 B.R. 624, 628 (E.D.Pa.2002)). A cause of action need only accrue to a plaintiff prior to filing to become property of the bankruptcy estate; a formal complaint is not necessary. Feist v. Consol. Freightways Corp., 100 F.Supp.2d 273, 274 (E.D.Pa.1999) aff'd, 216 F.3d 1075 (3d Cir.2000). Thus, where a debtor’s cause of action arises before a debtor files for bankruptcy, “[t]he Chapter 7 trustee [is] the only person with authority to bring such a cause of action.” In re" }, { "docid": "16090786", "title": "", "text": "633, 526 S.E.2d at -. It examined “whether a debtor’s failure to supplement a Chapter 13 bankruptcy petition or to reopen the bankruptcy proceedings so as to list a cause of action accruing after the filing of the petition but before the discharge of the bankruptcy precludes the debtor from pursuing the cause of action in a Georgia state court.” Id. (emphasis added). Because a post-petition cause of action is an asset of a Chapter 13 bankruptcy estate, id., and debtor Wolfork failed her clear duty to amend and disclose her vehi cle-accident based tort claim, the majority held that she was judicially estopped from advancing it in State court. 241 Ga.App. 633, 526 S.E.2d 436, 438; see also id. at - (dissent arguing, inter alia, that a fact issue existed). In so holding, it distinguished those cases where the debtor moved to reopen the bankruptcy proceeding to amend the asset schedule to include the tort claim, for then the proceeds of the claim would have inured to the benefit of the creditors, and the inconsistency of declaring that no such asset existed would have been cured through amendment. Wolfork did not attempt to reopen the case, even though the bankruptcy court had the discretion to grant a reopening under 11 U.S.C. § 350(b). Unscheduled assets, newly discovered assets, or concealed assets usually furnish a basis for reopening the case. The bankruptcy court’s power to reopen was not circumscribed by any particular time limit. Wolfork’s decision not to seek to reopen mandates summary judgment against her. Id. (quote and cites omitted). Here Scoggins — who failed to disclose a pre-petition claim — does not state whether he has been discharged, but his lawyer represents that he is in the process of moving to amend his bankruptcy filings to disclose this claim. See doc. # 44 at 1-2. However, counsel furnishes no sworn affidavit from Scoggins, nor documentation showing how far his bankruptcy has progressed. In any event, this Court concludes that Scoggins is too late because he is only disclosing this claim when forced by his adversary to do so." }, { "docid": "14118483", "title": "", "text": "Koch Ref, 831 F.2d at 1348. A trustee in bankruptcy has no standing to prosecute such a personal claim. In re Cannon, 277 F.3d at 853-54. In this instance, the claimed wrongdoing supposedly occurred while Zoll was still in the debtor’s employ. His acts (if they occurred at all) took place well before FFC gained possession of its collateral. Any wrong committed would, therefore, have been directly adverse to the debtor’s interests and would have diminished its estate generally. See Highland Capital Mgmt., L.P. v. Welsh, Carson, Anderson & Stowe, VI, L.P. (In re Bridge Info. Sys., Inc.), 344 B.R. 587, 594-95 (E.D.Mo.2006); In re Eagle Enters., Inc., 265 B.R. 671, 678 (E.D.Pa.2001). Consequently, the harm was to the debtor, and these claims must be considered part of the debtor’s estate. This point is reinforced by an examination of the state court complaint, which only describes harm inflicted upon the debtor, its customers, and its assets. As to City, the harm alleged is derivative and indirect. The short of it is that FFC (in whose shoes City stands) is no different from any other creditor of the debtor with respect to the asserted claims. If Allied, with Zoll’s connivance, misappropriated the debtor’s assets, the trustee is the proper party to assert those claims. See Koch Ref, 831 F.2d at 1342-43. In an effort to change the trajectory of the debate, City falls back on the venerable tenet that any property not administered when a bankruptcy case is closed is deemed abandoned. See 11 U.S.C. § 554(c). Based on that tenet, it posits that it owns the claims against Allied because the trustee abandoned them. The district court did not reach the merits of this argument, nor do we. Bankruptcy Rule 8006 requires that a first-tier appeal include “a statement of the issues to be presented.” Several courts have held that a party’s failure to include a particular issue in such a statement means — at least in the absence of exceptional circumstances — that the issue is waived. See, e.g., Zimmermann v. Jenkins (In re GGM, P.C.), 165 F.3d 1026," }, { "docid": "14176699", "title": "", "text": "the real party in interest under Federal Rule of Civil Procedure 17 if this case is to continue. A debtor filing for bankruptcy protection under Chapter 7 creates an estate, which “includes all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). “The broad scope of § 541 includes causes of action existing at the time the bankruptcy petition is filed.” Nicolaides v. Bank of Am. Corp., CIV.A. 10-1762, 2012 WL 2864468, at *8 (E.D.Pa. July 12, 2012) (citing Anderson v. Acme Markets, Inc., 287 B.R. 624, 628 (E.D.Pa.2002)). A cause of action need only accrue to a plaintiff prior to filing to become property of the bankruptcy estate; a formal complaint is not necessary. Feist v. Consol. Freightways Corp., 100 F.Supp.2d 273, 274 (E.D.Pa.1999) aff'd, 216 F.3d 1075 (3d Cir.2000). Thus, where a debtor’s cause of action arises before a debtor files for bankruptcy, “[t]he Chapter 7 trustee [is] the only person with authority to bring such a cause of action.” In re Banks, 223 Fed.Appx. 149, 151 (3d Cir.2007) (citing Cain v. Hyatt, 101 B.R. 440, 442 (E.D.Pa.1989)); see also 11 U.S.C. § 323(a)-(b). The bankruptcy trustee is the proper party to pursue causes of action belonging to the estate because any recovery benefits all creditors of the estate. See In re Emoral, Inc., 740 F.3d 875, 879 (3d. Cir.2014). “[W]here a debtor conceals an asset or fails to schedule it, the asset remains the property of the bankruptcy estate and, accordingly, the debtor can be found to lack standing to pursue its further disposition.” In re Kane, 628 F.3d 631, 641 (3d Cir.2010); see also McKenna v. Healthease, Inc., CIV.A. 10-3940, 2013 WL 159379, at *2 (E.D.Pa. Jan. 15, 2013) (“If a legal claim is not scheduled or otherwise administered by the time the bankruptcy is closed, it forever remains property of the estate, and the trustee remains the real party in interest.”) (quoting Matthews v. Potter, 316 Fed.Appx. 518, 521 (7th Cir.2009)). Here, Macauley filed her bankruptcy petition on January 30, 2008. See Voluntary Petition," }, { "docid": "17571586", "title": "", "text": "idea the Home Depot case was real,” and that he “thought the whole thing was all a scam,” are belied by his consent to join the Aquilino action and by the several telephone calls he received from attorneys’ offices that discussed his claims with him. See Biagiotti Aff. ¶¶ 3-4, 7. Moreover, there is insufficient support for the inference that Plaintiffs failure to disclose this litigation or its predecessors (i.e., Aquilino and Costello) in any of his bankruptcy filings was the result of good faith mistake or unintentional error. The courts that have addressed this issue have concluded that the “failure to disclose assets will only be deemed inadvertent or due to mistake when either the debtor has no knowledge of the claims or no motive to conceal the claims.” Ibok v. Siac-Sector Inc., 2011 WL 293757, at *7 (citations omitted, citing cases). As indicated above, the facts indicate that Plaintiff had knowledge of the claims. In addition, the reasonable inference may be drawn that Plaintiff had a motive to conceal the claims from the instant and predecessor litigations, that is, he concealed this “asset” in order to have his bankruptcy reorganization plan approved and to obtain re-classification of his debt. See id. at *8 (“With respect to his motive to conceal the claim, Ibok had such a motive. Had the trustee known about the claim, she might have attempted to sell the claim or to have extracted a settlement from the defendants in this case for the benefits of Ibok’s creditors.”). Moreover, there is insufficient basis upon which to allow Plaintiff to amend his bankruptcy petition to declare his claims in the instant case. [Although the Second Circuit has not directly addressed this issue, many other circuit courts have held that judicial estoppel bars a plaintiff from moving to reopen bankruptcy proceedings to include a cause of action as an asset of the estate. See, e.g., Reed v. City of Arlington, 620 F.3d 477 (5th Cir.2010) (plaintiffs failure to disclose cause of action during Chapter 7 bankruptcy judicially estopped trustee in bankruptcy from pursuing it) (reversing “1 million-plus judgment”" }, { "docid": "23317376", "title": "", "text": "the bankruptcy court did not consider the equitable doctrines of laches, estoppel, and clean hands, which, Watson contends, limit the statute. Pursuant to § 350(b): “A case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause.” 11 U.S.C. § 350(b). The statute gives the bankruptcy court broad discretion in deciding whether to reopen the case. Bankruptcy Rule 5010 delineates the procedure for reopening a case. Fed. R. Bankr.P. 5010. Only a debtor, creditor or trustee, has standing to move for the reopening of a case. Alpex, 71 F.3d at 356. Here, approximately two years after he received his discharge, the Debtor moved to reopen his Chapter 7 case to accord him relief from Watson’s malpractice claim. Pursuant to Bankruptcy Rule 9024 a motion to reopen a case is not subject to the one year limitation that governs other motions. However, bankruptcy courts have found that when an unreasonable delay has prejudiced the party opposing reopening, laches is a valid reason to deny motions to reopen. H.R.Rep. No. 95-595, at 338 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6294; S.Rep. No. 95-989, at 49 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5835 (“Though the court may permit reopening of a case so that the trustee may exercise an avoiding power, laches may constitute a bar to an action that has been delayed too long.”). Watson contends that both laches and/or equitable estoppel should bar the reopening of this case, alleging that the Debtor’s failure to include her on his schedules caused her economic harm because of the litigation expenses of her Claim. Generally, courts will apply the doctrine of laches when the following two elements are met: “(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.” Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961). Courts employ equi- table estoppel when all four prongs of the following test are met: 1) the party to be estopped is aware" }, { "docid": "18154471", "title": "", "text": "burdened by the debtor’s misconduct.” 365 F.3d at 1273. In Parker, the debtor had filed an employment discrimination lawsuit almost two years before filing a Chapter 7 peti tion. The lawsuit was not listed on her schedules. The debtor received a no-asset discharge, and her case was closed. The debtor then successfully reopened her bankruptcy case to add the lawsuit. The Chapter 7 trustee intervened in the employment discrimination case, and then the defendant filed a motion to dismiss, citing judicial estoppel as a defense. The district court granted the motion, and the trustee appealed. Id. at 1269-70. The circuit court began its analysis by noting that when the debtor, rather than the trustee, is the party pursuing the omitted cause of action, the appropriate defense is lack of standing rather than judicial estoppel. Id. at 1272. Because the omitted cause of action remains property of the estate, the trustee is the proper party to prosecute it. Id. Judicial estoppel generally requires the assertion of inconsistent positions in separate legal proceedings that are “ ‘calculated to make a mockery of the judicial system.’ ” Id. at 1271 (quoting Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir.2002)). However, because the trustee did not assert inconsistent positions, an essential element of judicial estoppel is missing. Id. at 1272. The effect of Parker seems to point to the complete abolition of the application of judicial estoppel to causes of action omitted from a debtor’s bankruptcy schedules. Because a trustee cannot be judicially estopped from asserting the claim, there is no way for a debtor to benefit from omitting the asset from the schedules, thereby failing to satisfy an essential element of the defense. Even if a debtor successfully prosecuted an omitted cause of action in his own name and won, any damages awarded would be property of the estate subject to seizure by the trustee. He occupies no better position by omitting the claim than he would had he disclosed it. Furthermore, if it were found that a debtor perpetrated some sort of fraud by his omission, there are other" }, { "docid": "10275594", "title": "", "text": "OPINION DAVID A. SCHOLL, Chief Judge. A. INTRODUCTION The instant adversary proceeding and a related motion in the Debtor’s main bankruptcy case present, at bottom, the issue of whether a debtor can have her Chapter 7 discharge challenged by a party who commences his efforts against her several months after the case has been closed, despite the fact that he received timely notice of the pertinent bankruptcy proceedings, but while he was incarcerated and allegedly under heavy medication. We determine that, while an incapacity may, hypothetically, be a valid exception to the strict time requirements for challenging a debtor’s discharge under 11 U.S.C. § 727(d)(1), which we deem the only statutory vehicle to achieve the result sought by the Plaintiff at this juncture, the Plaintiff has not offered sufficient evidence to enable us to apply such an exception to the instant facts. In addition, we find insufficient substance to the Plaintiffs underlying claims to justify relief in any event. Therefore, no relief will be granted to the Plaintiff. B. FACTUAL AND PROCEDURAL HISTORY EILEEN B. POOLE (“the Debtor”) filed a voluntary Chapter 7 bankruptcy case on April 16, 1993. After a meeting of creditors on June 18, 1993, the Trustee filed a no-asset report and the Debtor’s Discharge Order was mailed to all creditors on her mailing matrix on August 20,1993, all without incident. The case was closed on September 1, 1993. On January 14, 1994, an individual identifying himself as JAMES ANDERSON (“the Plaintiff’), then a prisoner at the Montgomery County Correctional Facility, wrote a letter to the court claiming that he had proof that the Debtor has stolen articles of his valued at $284,685, per an attached itemized list, and had committed fraud in her bankruptcy case by failing to disclose same. This court advised the Plaintiff, in a responsive letter of January 27, 1994, that it could proceed to act on his claims only if he filed a formal motion to reopen the Debtor’s case and revoke her discharge, supported with specific allegations. Two correspondences later, the Plaintiff forwarded a handwritten Statement of Claim to the court" }, { "docid": "11281892", "title": "", "text": "commerce and obtains a stay and the benefits derived by listing all his assets. The Bankruptcy Code and Rules “impose upon the bankruptcy debtors an express, affirmative duty to disclose all assets, including contingent and unliquidated claims.” In re Coastal Plains, 179 F.3d at 207-208; Hay, 978 F.2d at 557; 11 U.S.C. § 521(1). The debtor’s duty to disclose potential claims as assets does not end when the debtor files schedules, but instead continues for the duration of the bankruptcy proceeding. In re Coastal Plains, 179 F.3d at 208; Youngblood Group v. Lufkin Fed. Sav. & Loan Ass’n, 932 F.Supp. at 867; Fed. R. Bankr.P. 1009(a) (schedules may be amended as a matter of course before the case is closed). Hamilton’s failure to list his claims against State Farm as assets on his bankruptcy schedules deceived the bankruptcy court and Hamilton’s creditors, who relied on the schedules to determine wh'at action, if any, they would take in the matter. Hamilton did enjoy the benefit of both an automatic stay and a discharge of debt in his Chapter 7 bankruptcy proceeding.' See New Hampshire v. Maine, 121 S.Ct. at 1815 (noting that courts may consider whether the party seeking to assert an inconsistent position would derive an unfair advantage if not estopped). However, it is his failure to disclose assets on his bankruptcy schedules that provides the most compelling reason to bar him from prosecuting claims against State Farm. In re Coastal Plains, 179 F.3d at 208. We agree with the Fifth Circuit’s analysis in In re Coastal Plains when it said, “[I]t is very important that a debtor’s bankruptcy schedules and statement of affairs be as accurate as possible, because that is the initial information upon which ah creditors rely.” Id. The Coastal court further defined the essence of judicial es-toppel in this bankruptcy context: The rationale for ... decisions [invoking judicial estoppel to prevent a party who •failed to disclose a claim in bankruptcy proceedings from asserting that claim after emerging from bankruptcy] is that the integrity of the bankruptcy system depends on full and honest disclosure by debtors" }, { "docid": "8886272", "title": "", "text": "Objecting Parties moved to dismiss the arbitration proceeding on the ground of judicial estoppel. [Id. at 45]. The Objecting Parties contend that because the Debtor has taken a position in his bankruptcy case (that he had no unliquidated causes of action at the time he filed his petition) contrary to the position he is taking in the arbitration (that he has a claim against the Objecting Parties), he is barred from pursuing his claim. On May 1, 2001, the Debtors filed the instant motion, requesting that the Court reopen their Chapter 13 case and allow them to amend their schedules to add the claim as an asset and to amend their Chapter 13 Plan. The Debtors suggest that this action would allow the Trustee to recover an additional amount of money that could be used to repay approximately $105,000 of unsecured debt, from which the Debtors received a discharge. The Objecting Parties contend that the Court should not allow the Debtors to reopen the case and amend their schedules because the Debtors acted in bad faith when they failed to disclose fully the existence of the claim on their schedules during their bankruptcy case. Conclusions op Law A. Whether the Objecting Parties Have Standing As a preliminary matter, the Court must determine whether the Objecting Parties have standing to appear and oppose the Debtors’ motion. The Court may consider the issue of whether a party has standing sua sponte. Bischoff v. Osceola County, Florida, 222 F.3d 874 (11th Cir.2000). Section 350(b) of the Bankruptcy Code provides that the Court may reopen a closed case in order to administer assets, accord relief to the debtor, or for other cause. 11 U.S.C. § 350(b). Bankruptcy Rule 5010 identifies the parties who may move the Court to reopen a case. Fed.R.BanKrP. 5010 (“a case may be reopened on motion of the debtor or other party in interest”). While neither § 350(b) nor Rule 5010 identify the parties who have standing to object to such a motion, it has been held that a “party in interest” may object to a motion to reopen a" }, { "docid": "16090782", "title": "", "text": "and (c) despite being asked (by the bankruptcy filing forms), failed to disclose the instant claim to the bankruptcy court. Doc. # 34. Nor do the parties dispute that plaintiff filed this action in February, 1999, after personally contacting Liberty in May, 1998, to press his damages claim against its insured (Arrow). Id. In light of these facts, Arrow contends, Scoggins should be judicially estopped from advancing this claim because he knew about it but failed to timely disclose it to the bankruptcy court. Doc. #33; see Reagan v. Lynch, 241 Ga.App. 642, 524 S.E.2d 510, 511 (1999) (judicial estoppel barred Reagan’s suit because he did not include his contract/negligence claims as potential assets in his bankruptcy petition, and merely giving notice to his trustee without also amending his petition — or moving to reopen his case — was not enough). Plaintiff points to the Reagan concurrence suggesting that debtors can move to amend their bankruptcy petitions or reopen their cases to declare the omitted cause of action. Doc. #44 at 1-2. That is, Scoggins’s counsel claims, exactly what he’s doing now. Id. That beckons the obvious question, however: should judicial estoppel apply nevertheless since Scoggins is “fessing up” only because his adversary exposed his omission? The answer arises from a review of the judicial estoppel doctrine’s central purpose. The Reagan court first reviewed Southmark Corp. v. Trotter, Smith, 212 Ga.App. 454, 442 S.E.2d 265 (1994), where the Georgia Court of Appeals applied judicial estoppel to a plaintiff who failed to list his claims for legal malpractice in his Chapter 11 bankruptcy action. [It] determined that the plaintiffs excuse that he had been reasonably diligent in investigating potential causes of action was without merit because the bankruptcy court required disclosure of even potential claims. Reagan, 241 Ga.App. 642, 524 S.E.2d 510, 511. Likewise, in Byrd v. JRC Towne Lake, Ltd., 225 Ga.App. 506, 507, 484 S.E.2d 309 (1997), the plaintiff argued against judicial estoppel because she did not “intend” to mislead the court by failing to list her claim on her Chapter 13 bankruptcy schedule. Nevertheless the doctrine applied because" }, { "docid": "7876377", "title": "", "text": "Criswell), 102 F.3d 1411 (5th Cir.1997) (Chapter 7 trustee judicially estopped from asserting that creditor was not transferee of oil and gas properties that debtor fraudulently conveyed to children, because trustee succeeded in preference action based on assertion that creditor's lien was a transfer); Eubanks v. F.D.I.C., 977 F.2d 166 (5th Cir.1992) (res judicata effect of order confirming plan of reorganization barred debtors from asserting undisclosed claims); County Fuel Co., Inc. v. Equitable Bank Corp., 832 F.2d 290 (4th Cir.1987) (debtor's failure to assert breach of contract counterclaim to proof of claim filed by creditor barred subsequent breach of contract action against creditor based on \"principles of waiver closely related to those that, in the interests of repose and integrity, underlie res judicata”); United Virginia Bank/Seaboard Nat’l v. B.F. Saul Real Estate Investment Trust, 641 F.2d 185 (4th Cir.1981) (creditor judicially estopped from litigating issue based on earlier inconsistent position in bankruptcy proceedings). . Even if detrimental reliance were an element, there is evidence that Browning relied on the no-claims-existed representations in withdrawing its objection to lifting the stay and in not bidding at the auction on Coastal's intangible assets. . See, e.g., Brassfield v. Jack McLendon Furniture, Inc., 953 F.Supp. 1424 (M.D.Ala.1996) (in Chapter 7 case, where claims accrued after filing petition, and where debtor was not aware of claims during bankruptcy, debtor not judicially estopped from asserting unscheduled claims); Dawson v. J.G. Wentworth & Co., Inc., 946 F.Supp. 394 (E.D.Pa.1996) (although debtor disclosed claim in amended bankruptcy schedules, fact issue regarding debtors’ good or bad faith in not disclosing claims in original bankruptcy schedules precluded summary judgment based on judicial estoppel); Richardson v. United Parcel Serv., 195 B.R. 737 (E.D.Mo.1996) (judicial estoppel inapplicable for undisclosed claim where debtor's bankruptcy case was still pending, assets had not been distributed, and no plan had been confirmed); In re Envirodyne Industries, Inc., 183 B.R. 812 (where retention of jurisdiction in plan of reorganization put creditors on notice as to possibility of such actions, and debtor's undisclosed counterclaim did not assert position contrary to listing of creditor's claim as undisputed, judicial estoppel" }, { "docid": "8210409", "title": "", "text": "is an abuse of discretion not to reopen the case to allow the assets to be administered. Section 554(c) provides that property which is scheduled but not otherwise administered when a case is closed is abandoned to the debtor and is administered for the purposes of Section 350. Since the personal injury claim was not scheduled, however, it was neither administered nor abandoned when the Debtors’ case was closed. It was, and remains, property of the bankruptcy estate. The Debtors have asserted that the claim against Ap-pellee could be worth $200,000, and that they intend to file for the allowed Oklahoma exemption of $50,000 in any amount recovered. There is, therefore, a potential for a $150,000 recovery for creditors if the Trustee is successful in pursuing the claim. The bankruptcy court denied the motions to reopen because it determined that both the Debtors and the Trustee would be judicially estopped from pursuing the claim against Appellee, thus implicitly finding that the claim was valueless to the estate. As a general proposition, there is no abuse of discretion in the bankruptcy court’s decision not to reopen a case if reopening would not afford the moving party any relief. If judicial estoppel would not bar either the Debtors or the Trustee from pursuing the claim, however, the failure of the bankruptcy court to reopen the case would prevent the estate from realizing the value of the claim for the benefit of creditors, and would be an abuse of discretion. Therefore, whether the bankruptcy court abused its discretion in reopening the case turns on whether judicial estoppel bars the Debtors or the Trustee from proceeding with the personal injury case. It was error for the bankruptcy court to rule that judicial estoppel barred the Debtors’ claim against Appellee for three reasons. 1. The Elements of Judicial Estoppel Were Not Met a. Judicial Estoppel as Applied to the Debtors The Tenth Circuit recently adopted the doctrine of judicial estoppel in Johnson v. Lindon City Corp. The court noted that it had been reluctant to apply this doctrine in past cases, however, it felt constrained" }, { "docid": "10324089", "title": "", "text": "motion, Spaine asked the bankruptcy court to reopen her bankruptcy case so that she could amend her list of assets to add her claims against Community Contacts. The bankruptcy court allowed the amendment. II. Standing/Real Party in Interest Community Contacts argued in the district court that Spaine lacked standing to assert her claims because they had become the property of her bankruptcy estate. Such issues are addressed sometimes in terms of standing, sometimes in terms of the real party in interest, and sometimes in terms of both. See, e.g., Biesek v. Soo Line R. Co., 440 F.3d 410, 413 (7th Cir.2006) (standing); In re Perkins, 902 F.2d 1254, 1258 (7th Cir.1990) (both); see also Weissman v. Weener, 12 F.3d 84, 86 (7th Cir.1993) (noting close relationship and distinctions between standing and real-party-in-interest doctrines). The relationship and distinctions were described well in Hernandez v. Forest Preserve Dist. of Cook County, 2010 WL 1292499, at *2-3 (N.D.Ill. March 29, 2010) (Dow, J.), and Guynn v. Potter, 2002 WL 243626, at *4-5 (SJD.Ind. Jan.25, 2002) (Tinder, J.). Because standing implicates subject matter jurisdiction, we address the question without being prompted by the parties. The district court correctly found that Spaine has standing to continue her suit against Community Contacts. The bankruptcy case had been reopened and then closed again after the trustee undoubtedly knew about the civil case. That sequence of events indicated that the trustee had abandoned the lawsuit as property of the Chapter 7 estate, so the property reverted to the debtor, plaintiff Spaine. See 11 U.S.C. § 554(c); Cannon-Stokes v. Potter, 453 F.3d 446, 448 (7th Cir.2006); Biesek, 440 F.3d at 413; Morlan v. Universal Guaranty Life Ins. Co., 298 F.3d 609, 618 (7th Cir.2002). III. Judicial Estoppel Although Spaine has standing, the district court found that the evidence raised an inference that Spaine had omitted the lawsuit from her bankruptcy schedules to hide the potential recovery from her creditors. On that basis, the court explained, it would exercise its discretion and find Spaine judicially estopped from pursuing the lawsuit. The court’s order did not mention, however, Spaine’s testimony that" }, { "docid": "8210405", "title": "", "text": "A. Appellee Lacked Standing to Oppose the Motions to Reopen Bankruptcy Rule 5010 provides that a case may be reopened “on motion of the debtor or other party in interest.” In In re Alpex, the Tenth Circuit determined that, notwithstanding the expansive view of the term “party in interest” in some bankruptcy contexts, the term should be restrictively interpreted in connection with motions to reopen. It stated that standing to request reopening of a bankruptcy case is limited to the debtor, a creditor, or, perhaps, a trustee. In Al-pex, the debtor’s confirmed Chapter 11 plan authorized a liquidating trustee to pursue a patent infringement claim against Nintendo. Nintendo filed a motion to reopen the bankruptcy case to obtain an order interpreting the confirmed plan so as to limit the amount the trustee could recover in the patent infringement lawsuit. Nintendo claimed it had standing to seek such an order because the amount of its potential liability would be adversely affected depending on how the liquidating trustee decided to enforce the plan. It argued that its potential liability to Alpex gave it standing to challenge the plan. The Tenth Circuit disagreed. It found that the obligation of Nintendo to Alpex in the separate civil action was not affected by the bankruptcy, but by the course of the separate lawsuit and that, “Nintendo’s status as a defendant in a civil suit does not create standing here.” In a recent case with facts similar to this appeal, the District Court for the Northern District of Oklahoma held that a defendant in a civil case brought by the debtor had no standing to appeal the bankruptcy court’s order reopening the debtor’s bankruptcy case. In In re Kreutzer, the debt- or failed to list a medical malpractice claim as an asset in his bankruptcy. After he was discharged and the case closed, he proceeded with the malpractice lawsuit. The doctor/defendant filed a motion to dismiss claiming that the debtor lacked standing to pursue the malpractice claim and that he was barred by judicial estoppel. The debtor sought to reopen his bankruptcy case to list the" }, { "docid": "18044229", "title": "", "text": "that requires notice to the creditors, which has never been given, and the opportunity for a hearing. Id. (internal citation omitted). Biesek provides no support for the majority’s position given that the trustee here has abandoned Ah Quin’s suit. In Cannon-Stokes v. Potter — authored by Judge Easterbook a few months after Biesek, and also highlighted by the majority, see Maj. Op. at 273-76 — the Seventh Circuit followed through on its dicta in Biesek about abandonment. 453 F.3d at 448-49. The court was faced with a situation where “the trustee abandoned any interest in th[e] litigation, so the creditors [we]re out of the picture and [the court had to] decide whether [the debtor] may pursue her claim for personal benefit.” Id. at 448. Noting that “[a]ll six appellate courts that have considered [the issue] hold that a debtor in a bankruptcy who denies owning an asset, including a chose in action or other legal claim, cannot realize on that concealed asset after the bankruptcy ends,” id., the court ruled that the debtor could not pursue her claim, asserting, “as the other circuits ... ha[d] concluded,” that “[j]udicial estoppel blocks any attempt to realize on th[e] claim for [the debtor’s] personal benefit,” id. at 448-49. Even the Seventh Circuit, then, would disagree with the majority’s view in light of the fact that the trustee abandoned Ah Quin’s discrimination claim. Even accepting the majority’s broad reading of the “inadvertence or mistake” factor, Ah Quin should be estopped here. There are cases where there truly seems to be an honest mistake in failing to disclose a potential lawsuit in bankruptcy filings, see, e.g., Whitten v. Fred’s Inc., 601 F.3d 231, 241-42 (4th Cir.2010), but this is not one of them. Ah Quin concealed her claim and received a favorable discharge, then sought to pursue the claim without reopening her bankruptcy until the threat of judicial estoppel loomed. When judicial estoppel was applied, and the trustee abandoned the creditors’ interest in the claim, Ah Quin continued to pursue the claim for her own benefit. This is not behavior we should tolerate. See Payless" }, { "docid": "6849782", "title": "", "text": "by finding that there was bad faith. In making this argument, Krystal compares itself to the debtor in Ryan. There, we held that a Chapter 11 debtor-builder’s failure to disclose causes of action against suppliers of allegedly defective wood trim in bankruptcy proceedings did not bar debtor from pursuing those claims outside of bankruptcy. Although the contingent assets represented by those claims were not disclosed in the bankruptcy proceedings, we rejected the Bankruptcy Court’s application of judicial estoppel because the debtor did not attempt to “play fast and loose” with the court. We also held that the application of judicial estoppel does not turn on whether the estopped party actually benefitted from its attempt to play fast and loose with the court. We concluded that the presence or absence of any such benefit is merely a factor in determining whether the evidence would support a conclusion of bad faith. After raising the issue of whether Ryan actually received a benefit from the omissions there, we stated: “We readily conclude that the doctrine of judicial estoppel in this circuit contains no such requirement.” 81 F.3d at 361. We then explained: the critical issue is what the [party] contended in the underlying proceeding, rather than what the jury found. Whether the party sought to be es-topped benefitted from its earlier position or was motivated to seek such a benefit may be relevant insofar as it evidences an intent to play fast and loose with the courts. It is not, however, an independent requirement for application of the doctrine of judicial estoppel. Id. (Internal citations and quotation marks omitted). The totality of the circumstances in Ryan lead us to conclude that the debtor did not omit any information in bad faith. Ryan omitted certain assets from its disclosures, but it also omitted counterbalancing liabilities. Therefore, largely the “balance of assets and liabilities ... may have been unaffected by the failure to list [certain] claims as assets.” 81 F.3d at 363. Ryan did not benefit from the omission. Despite Krystal’s argument to the contrary, that is not the situation here. The Bankruptcy Court could" }, { "docid": "21630768", "title": "", "text": "as the real party in interest. Reynolds informed the district court that Parker had filed for relief under Chapter 7 on or about 9 February 2001, and had failed to disclose the existence of the discrimination claims. Reynolds stated that, after Parker’s attorneys informed him that the discrimination case existed, he investigated and then moved to reopen the bankruptcy case to allow for further administration of the bankruptcy assets. The bankruptcy court granted his motion to reopen, and the district court granted Reynolds’s motion to intervene. Wendy’s then moved to dismiss Parker’s discrimination claims. Wendy’s argued that, under our reasoning in Bumes, Parker’s claims for monetary damages were barred by the doctrine of judicial estoppel because she failed to disclose the existence of her discrimination suit to the bankruptcy court. Wendy’s contended that Parker had knowledge of her discrimination claims prior to, and during, the bankruptcy proceedings and that she would not have been entitled to a “no asset” complete discharge of all debts had her creditors, Reynolds, or the bankruptcy court known of a lawsuit claiming substantial damages. According to Wendy’s, the fact that the bankruptcy court reopened Parker’s proceedings was relevant only as an acknowledgment that Parker’s failure to disclose resulted in a tangible benefit to Parker in the bankruptcy proceeding. The district court granted Wendy’s motion to dismiss, construed as a motion for judgment on the pleadings. The district court found that “this case [wa]s factually and procedurally indistinguishable” from Bumes because Parker had failed to disclose the existence of her discrimination claim when she filed for Chapter 7 bankruptcy and the bankruptcy proceeding resulted in the discharge of her debts. Rl-30 at 2. As a result, the district court held that Parker was judicially estopped from bringing her discrimination claim and dismissed her complaint with prejudice. Reynolds then moved for reconsideration, arguing that this case was distinguishable from Bumes. First, Reynolds pointed out that, where the real party in interest in Bumes was the debtor acting on his own behalf, here the real party in interest is the trustee, Reynolds, acting on behalf of Parker’s creditors." }, { "docid": "16090785", "title": "", "text": "235 Ga.App. 444, 509 S.E.2d 707 (1998)], [where] the plaintiff failed initially to include the subject claims in her Chapter 7 bankruptcy petition, filed pro se, but she later obtained permission from the court to amend her filings and correct the omissions. Id. at 445-446, 509 S.E.2d 707.” Reagan, 241 Ga.App. 642, 524 S.E.2d 510, 511. As the Reagan court demonstrated, judges focus on the debtor’s intent, and that includes attempts to correct (rather than exploit) an unfair tactical advantage one otherwise gains by failing to timely disclose litigation claims to the bankruptcy court. Id. at 511 (“Although application of the doctrine of judicial estop-pel is severe, whether to apply it depends entirely on the actions of the plaintiff’). In a whole-court opinion, a majority applied judicial estoppel in Wolfork v. Tackett, 241 Ga.App.633, 526 S.E.2d 436 (1999). There the court pointed out that it “applies the federal doctrine of judicial estoppel to preclude the prosecution of unliquidated tort claims that discharged debtors failed to list as assets in their federal bankruptcy petitions.” 241 Ga.App. 633, 526 S.E.2d at -. It examined “whether a debtor’s failure to supplement a Chapter 13 bankruptcy petition or to reopen the bankruptcy proceedings so as to list a cause of action accruing after the filing of the petition but before the discharge of the bankruptcy precludes the debtor from pursuing the cause of action in a Georgia state court.” Id. (emphasis added). Because a post-petition cause of action is an asset of a Chapter 13 bankruptcy estate, id., and debtor Wolfork failed her clear duty to amend and disclose her vehi cle-accident based tort claim, the majority held that she was judicially estopped from advancing it in State court. 241 Ga.App. 633, 526 S.E.2d 436, 438; see also id. at - (dissent arguing, inter alia, that a fact issue existed). In so holding, it distinguished those cases where the debtor moved to reopen the bankruptcy proceeding to amend the asset schedule to include the tort claim, for then the proceeds of the claim would have inured to the benefit of the creditors, and the" }, { "docid": "7953531", "title": "", "text": "her assets, which are part of the estate. See Chartschlaa v. Nationwide Mut. Ins. Co., 538 F.3d 116, 122 (2d Cir. 2008). This obligation includes disclosing “causes of action possessed by the debtor at the time of filing.” Crawford v Franklin Credit Mgmt. Corp., 758 F.3d 473, 484 (2d Cir. 2014); see also 4 Collier on Bankruptcy ¶ 521.06[3][a] (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2015) (“Possible causes of action belonging to the debtor should be listed [on the schedule of assets], even if the likelihood of success is unknown.”)- Properly scheduled property. that has, not been administered by the trustee at. the close of the bankruptcy case is abandoned, i. e., returned to the debtor by operation. of law. See Chartschlaa, 538 F.3d at 122; 11 U.S.C. § 554(c). However, undisclosed assets that the trustee- has not otherwise abandoned “automatically, remain property of the estate after the case is closed.” Chartschlaa, 538 F.3d at 122; see 11 U.S.C. § 554(d). Accordingly, a debtor who fails to properly schedule a legal claim may be barred from asserting that claim after the close of the bankruptcy case. See Chartschlaa, 538 F.3d at 122-23. Courts have held in such circumstances that the debtor lacks standing to pursue the claim, is precluded by the doctrine of judicial estoppel, or both. See, e.g., Crawford, 758 F.3d at 484-87 (addressing lower court’s dismissal of claim based on lack of standing and judicial estoppel); BPP Ill., LLC v. Royal Bank of Scot. Grp., PLC, No. 13 Civ. 638, 2015 WL 6143702, at *5 (S.D.N.Y. Oct. 19, 2015). In deciding whether an asset, such as a legal claim, has been adequately disclosed, “[t]here are no bright-lines rules for how much itemization and specificity [are] required.” 4 Collier on Bankruptcy ¶ 521.06[1]; accord Tilley v. Anixter Inc., 332 B.R. 501, 509 (D. Conn. 2005). A debtor generally satisfies the duty if he or she puts the trustee on inquiry notice — that is, the trustee has enough information “to determine whether to investigate further.” Romeo v. FMA All., Ltd., No. 15 Civ. 6524, 2016" } ]